Retrospective removal of donor anonymity: respectful, fair, grateful and moral? An evidence-based argument

The decision of the state Government of Victoria, Australia, to enable donor-conceived people to learn the identity of their donor regardless of their donor's consent (1) has generated divergent responses: Sonia Allan and Damian Adams welcomed the new legislation as an overdue triumph of the rights of donor-conceived people (in BioNews 841), while Guido Pennings has castigated it as 'disrespectful', 'unfair', 'ungrateful' and 'immoral' (in BioNews 843). Neither of these reactions is surprising, given these scholars' previous contributions to the debate on retrospective removal of donor anonymity (2,3).

Lawmakers in Victoria have been the first to face up to the anomaly presented by recent legislative developments on assisted human reproduction that consider the interests of donor-conceived individuals are best served by allowing them the opportunity to learn the identity of their donor (and, in some cases, other genetic relatives), but which preclude the retrospective application of this opportunity. Simply put, as Victorian lawmakers observed (4), their existing legislation effectively discriminated against some donor-conceived individuals on the basis of the date the gametes from which they were conceived were donated. Further, they argued, that where the state – rather than individual clinics or doctors – held records in the form of statutory registers, access to which was barred, then the state had a responsibility to resolve this challenge.

Certainly this presented a potential conflict of interests between donor-conceived individuals wanting to learn about their biogenetic heritage, gamete donors who had donated under the presumption that their donation would remain anonymous, and parents who might assume that their recourse to donor conception would remain confidential. Prior to Victoria's Assisted Reproductive Treatment Amendment Act 2016 (1), other governments had generally avoided confronting this dilemma.

Pennings' claim that 'the countries that abolished donor anonymity are trying to outdo each other to show that they are the champions of children's rights' therefore hardly bears scrutiny. Very few of these jurisdictions actually give 'children' (i.e. those aged under 18 years) any rights to information at all, and in most of these there remain a raft of measures that could be taken to further promote the rights of donor-conceived children and adults (5). The most recent jurisdiction to join this club, the Republic of Ireland, provides evidence of this in only granting such rights to those aged over 18 years (see BioNews 793).

Examination of the history of legislation permitting donor-conceived individuals rights of information about their donor shows that, in most jurisdictions, initial legislation promoted donor anonymity, a policy that could itself be described as 'disrespectful', 'unfair', and 'immoral' and which was based on nothing other than accepted medical practice that had no evidence base to support it. As the Victorian Law Reform Committee (4) discovered, anonymity was presented to donors as a 'fait accompli' – more as a statement of 'this is how we do it' – rather than as something to which donors had the opportunity to consider and to give their genuine informed consent.

Since the Assisted Reproductive Treatment Amendment Act 2016 (1) is the first legislation to tackle the taboo of retrospectivity, we will have to wait to see if its provisions to protect the interest of those donors (and their families) who do not wish to have contact with their donor-conceived offspring, and of recipient parents, are sufficiently effective.

Certainly Victoria has shown moral leadership in its careful consideration of how best to provide professional support to those affected, building on its past experience in taking such responsibilities seriously (6). Previous attempts among some commentators to predict the consequences of reform of donor conception services have fallen wide of the mark, such as anticipating the decline in donor recruitment following the removal of donor anonymity in the UK (7,8). Consequently, Pennings' foreboding that 'in the future the government might recognise [donors] as the legal parents of donor offspring and force them to pay maintenance for the child... UK donors should start worrying' should be treated with scepticism. The history of medical science is littered with the need for social policies that address the unexpected fallouts from its advances. Far from castigating Victoria, we should be applauding its bravery in leading the way.