Law Reform Committee: access by donor-conceived people to information about donors

It has been a privilege to serve on the Law Reform Committee during its inquiry into access by donor-conceived people to information about donors. This is a sensitive and difficult issue. It involves balancing the sometimes competing rights and responsibilities of many decent individuals whose lives have been dramatically affected by choices made decades ago.

It involves an exploration and critique of the prevailing practices and wisdoms of a different time, practices that were governed by good intentions and widespread support — namely, that donors should remain forever anonymous and children should never be told of the truth of their biological heritage — but which have led to what appear to be unforeseen and in some cases devastating consequences. It has required an assessment of whether that most rarely used tool of power should be employed — retrospectivity — to address a clear need of members of our community who are suffering.

To this end the committee has been so nobly assisted by many witnesses who gave their time and their hearts and souls to share their journeys; first and foremost, the children who were conceived using donor gametes that were provided in the era of anonymity, many of whom are in the gallery today, and I welcome them. These now young adults spoke to us with a frankness, a composure and a resoluteness that was exceptional.

Some of them have been campaigning tirelessly for many years for change — change that will give them and others the right to know the identity of their biological fathers. Myfanwy Cummerford gave the following testimony:

To find out that I was donor-conceived at age 20 was absolutely devastating … it’s a process of grieving, what I knew to be who I thought I was, and then redeveloping a sense of identity with this new information that I had.

Another witness, Narelle Grech, is an extraordinarily courageous young woman who has been desperate to know the identity of her father since she found out as a teenager she was donor-conceived. Her brave evidence included this:

Not only do I not have access to my records, earlier this year in May I was diagnosed with stage 4 bowel cancer following an emergency surgery … The first thing the doctors …
asked me was: is there any history of cancer in your family? You can imagine how upsetting it was to not only be told of this diagnosis but to then have to wonder whether I’ve inherited this from my paternal family.

The committee also heard from mothers of donor-conceived children, who told of the burden they had felt carrying the secret about their children’s parentage, a burden that has been made more difficult because they knew the information about the donor would remain secret. Lauren Burns’s mother told us:

When I was thinking about telling I was aware that Jane and Lauren were not legally entitled to any information about their donor. It seemed almost a sick joke to have to admit to my children that they were conceived by a stranger whom they would never know anything about.

It was clear to me and other members of the committee that many donor-conceived children suffer profoundly and grapple with fundamental issues of identity upon becoming aware of their biological parentage. This situation is compounded by being denied access to information that they know exists about their donor fathers.

It was also clear through the testimony of medical professionals who had been involved at the time that donor anonymity was the norm and from the evidence of donors that donors gave their gametes on the understanding that they would remain anonymous and that they would never be contacted by any offspring that may result from their donation.

The committee recognises that disturbing this belief through retrospective change is a most serious step, and it did not make this recommendation lightly, not least because it is a fact that these donors may have a number of children of whom they are completely unaware and to be contacted later in life could be exceptionally disruptive for them and their families. However, we were assisted in this regard by a number of donors who gave very strong evidence about their views on balancing the rights of children with their own. For example, Ian Smith stated:

One thing is very clear for me. That is that the interests and wellbeing of the children — all of them — are paramount. Regardless of what the legal framework was at the time of my being a sperm donor …

There is no doubt that this is a complicated matter, but we must accept where we are; we must heed the call of those affected and respond.

There is a group of people who were born through the assistance of generous and well-meaning donors into the arms of loving parents who desperately wanted them. These parents were assisted by doctors who pioneered practices that gave otherwise childless couples the precious opportunity to start families. Everyone thought at the time that the best approach was to keep the donor’s identity a secret and never tell the children. We do not question the altruism of these motives, but the journey of the children born from these times and practices — the journeys of which we have heard so much during this inquiry — demonstrate that it was the wrong approach. People have a right to know their heritage and identity. This is the overwhelming right that must be respected and enforced.

Hansard, 2012