02 September 2020
A possibly unforeseen consequence of donating sperm
As the definition of family becomes wider and less containable within traditional concepts, fascinating aspects of the law emerge, often as it struggles to keep up, which illustrate the human side of legal theory.
Similar to the seismic impact of the contraceptive pill in the 1960s on how we (particularly women) view and manage our fertility, the increasingly successful use of donor sperm in the US in the 1970s relieved untold heartbreak, albeit the procedures were kept fairly secret and generally only available to heterosexual couples.
Since then, and I would say probably post-Millennium, we’ve entered a new period of accessibility and transparency when it comes to assisted fertility and family – openly discussing and admitting to IVF, sperm, egg and embryo donation and egg freezing (not least since the latter became an option listed in Google’s employment benefits), yet further relieving the heartache of individuals and hetero-sexual and same-sex couples who would previously have believed they were unlikely to conceive.
Every year, around 2,700 children in the UK are conceived with the help of a donor. Rightly, fertility clinics in the UK are strictly regulated by the Human Fertilisation and Embryology Authority (HFEA) which ensures that anyone undergoing treatment or donating gametes (eggs or sperm) has received appropriate information and counselling to make informed decisions.
To be a registered sperm donor is a rigorous process in the UK: you must be between 18 and 41, be screened for sexually transmitted diseases and certain genetic disorders, have good quality sperm and must answer questions regarding sexual habits and drug use. All of which make practical and medical sense.
But an additional part of this process is that in 2005, the law changed so that it is no longer possible to register with a HFEA-licensed clinic as an anonymous sperm donor (or egg donor for that matter).
The law now states that donors must agree to be identifiable once the donor-conceived individual reaches 18, and consent to their details being included on the HEFA Register of Information.
This means that any child donor-conceived at a licensed clinic in the UK after 31 March 2005 will be entitled, at the age of 16, to some limited information about their donor, such as a physical description, their year of birth, marital status, and medical history. The law continues to prevent the donor being liable for financial maintenance of the child.
At 18, that child will, however, be entitled to identifying information about their donor, including their name, date of birth and last known address. If the child was conceived after 1 August 1991, they can also join the HFEA’s Donor Sibling Link , which will enable them to contact donor-conceived genetic siblings (so long as those siblings have also joined the Donor Sibling Link, or join in the future).
Since this law was only introduced 15 years’ ago, the oldest donor-conceived children have clearly not yet reached 18 when the possibility of identifying, and therefore finding, their biological father becomes a reality.
Continuing the positive spirit of transparency around assisted fertility, I would say children themselves are more likely to be aware of how they were conceived, in the same way that parents are encourage to tell their adopted children and children born via surrogacy early on. HEFA has just released helpful information on this and parents can access support from the Donor Conception Network.
Statistics are hard to come by, but as research continues into the psychological impact of being conceived by donor and perhaps the positive impact on a child of understanding their biological history, the next seismic step forward in our fertility story may well be of young adults making contact with biological fathers and siblings, yet further expanding the concept of what family means.
Read more about the legal implications of donor insemination from Sarah and Jennifer Lee, a barrister at Pump Court Chambers, in Thoughtleaders4 HNW Divorce (p.34)
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