Anonymous Donations - Different Rules Around the World

Wednesday, September 6, 2023

Having explored the support provided by the fertility industry to donor conceived people, recipient parents and donors, we now have a new theme.

We’ll be talking to people across the fertility industry, exploring their views on donor anonymity – how they feel about it, if and when it might be the right way to go, and what the industry could / should be doing.

We kick off with a summary of the current rules re donor anonymity in the following places. Information is gathered from the internet and our friends on social media, so do get in touch if you have more accurate or more detailed information!

Our conclusions:

There’s a dramatic inconsistency of practices across the globe.
No wonder when we talk to people from different countries about telling their children about their origins, we get such a range of responses.
If the legislation isn’t putting donor conceived people at the forefront of their frameworks, regrettably there’s an excuse for industry players not to either.
We think things need to change.

Australia: Anonymous donations are not allowed. Donor release age 18 (in the main).

Australia was the world's first country to end donor anonymity completely. The donor information is accessible to donor-conceived children and their parents through the central donor registry.

A right to information about a donor does not mean a right to contact that person or establish a relationship. Both donors and donor-conceived individuals will be able to state their contact preferences when applying to the central register, which determines if and how they may be contacted. Failure to respect these wishes will incur a penalty.

The Australian rules are very complex and impossible to summarise in a short blog section. Some jurisdictions allow ID release at 16, not 18, and some even from birth with the permission of the donor. And most jurisdictions are changing their laws, so by the time you read this, the legislation may have changed again. Donor Conceived Australia have a detailed summary of current legislation on their website for anyone who is interested in the up to date or detailed info.

DCA comment: “Parents often connect with the donor from a young age to ensure the DCP has an opportunity to “grow up” with the donor in their life, so that they have contact in case they need to ask medical information and, most importantly, so when the child asks: “do you think the donor likes basketball like I do?” parents can just send them a message and ask! rather than wait until 16 or 18 to connect with them.”

They also make an incredibly valid point in answer to the observation that a donor conceived person first needs to know they are donor conceived for ‘donor release’ to even be a relevant concept: “In Victoria, Australia we do however allow donors to make an application to make contact with DC offspring with world leading legislation, and if the offspring are not aware of their status, they will be told they are DC by the government authority, before being informed their parent’s donor would like to make contact. They can then accept or deny the contact from the donor as their personal wishes, but they are now aware of their conception status.”

Canada: Both anonymous and non-anonymous donations are allowed.

Canada allows any type of arrangement – it’s dependent on what the intended parents and donors decide. However, there is no registry to facilitate contact.

Michelle, from The Wait Fertility, comment: “Registries should be the standard, but with gametes being imported/ exported in countries who don’t have their own banks, it would be complex.”

Denmark: Both anonymous and non-anonymous donations are allowed.

Whilst both anonymous and non-anonymous donations are allowed, when making a double donation, at least one of the donors must be ‘non-anonymous’.

France: Anonymous donations are not allowed. Donor release age 18.

From September 2022 DCP will be able, when they reach the age of 18, to access donor identifying data (surname, first name, date of birth) and non-identifying data (age and general physical condition at the time of donation, family and professional situation, physical characteristics, motivations for donation).

According to Article 2 of the Civil Code the law has "no retroactive effect" i.e. the identity of people who donated before 1 September 2022 will remain secret unless they choose to communicate. Also, donors remain free to refuse contact if they wish.

Germany: Egg donation is not legal in Germany. Anonymous sperm donation is not allowed.

The Sperm Donor Register Act allows children born from 2018 onwards to access donor information. Clinics have to ensure that the data about the donor and the mother is added to a central register and documented for a minimum of 110 years. There is no minimum age for the donor conceived child to access the data.

Greece: Both anonymous and non-anonymous donations are allowed.

In Greece, since the new legislation passed in 2022, it is possible to choose open egg or sperm donation and learn more about the donor. Whether the donation is open or not is decided by both parties, the donor and the recipient parent(s). .

If the donor and the couple choose an open donation, the child can receive personal information about the donor after the age of 18.

In the case of anonymous donation in Greece, as in other countries, the identity of the donor and the patient is not revealed, and the child cannot receive any information about the donor even after the age of 18.

Italy: Only anonymous donations are allowed.

The donation of eggs and sperm is permitted in Italy. It is anonymous and accessible to infertile heterosexual couples. The rule of donor anonymity means that both recipient parents and donor-conceived children are not allowed to know the donor’s identity. Only for child health reasons, can relevant data be communicated to healthcare professionals treating the child, not the recipient parents. Otherwise, the only information that the clinic routinely reveals includes the donor’s age, race, physical characteristics (weight, height, eye and hair colour), blood type and Rh factor. Donors and recipients are phenotype matched.

Japan: Both anonymous and non-anonymous donations are allowed.

Anonymous sperm donation has existed in a legal grey zone in Japan, with no law explicitly prohibiting it, but no framework to govern it either.

Netherlands: Anonymous donations are not allowed. Donor release age 16.

In 2004, the law changed so that anonymous sperm or egg donation is no longer possible. Donor children can choose to find out who their biological parent is from the age of 16.

New Zealand: Anonymous donations are not allowed. Donor release age 18. Opt-in for ID release from birth.

If you become a donor, you have to provide identity information to the fertility clinic, and this information will be included on the Human Assisted Reproductive Technology (HART) register if a child is born from your donation.

The register is a closed register, which means that generally only the people named on the register can access the information, or their guardians if the child is under 18 years old.

NZ offer an ID release (of donor information) from birth on an opt-in type basis.

Portugal: Anonymous donations are not allowed. Donor release age 18.

Children born from donations have the right of access to the identity of their donors at the age of 18. The access to donor’s ID is granted and guaranteed by the Portuguese state and the information about donors is kept for 75 years.

South Africa: Only anonymous donations are allowed.

South African law (Regulation 19) prohibits disclosure of donor and recipient identities, and the couples who make use of anonymous donor sperm or eggs have no right to learn the identity of the donor. They also may not look for donor-identifying information anywhere else.

However this Sabinet article raises valid points: “[Regulation 19 states] No person shall disclose the identity of any person who donated a gamete or received a gamete, or any matter related to the artificial fertilisation of such gametes, or reproduction resulting from such artificial fertilisation except where a law provides otherwise or a court so orders.

If literally interpreted, this provision implies a blanket ban on any communication by any person, including gamete donors themselves, about the fact that they donated gametes (note the past tense). Prospective gamete donors who intend to donate their gametes therefore remain free to openly share their identities and their intention to donate as broadly as they wish. Only after the donors have donated does it apparently become verboten to disclose their identities. This pre-post dichotomy is both impractical and arbitrary. In our digital age, it is difficult – if not impossible – to delete information from the public sphere once it has become public. Furthermore, there is no conceivable rationale for allowing intended gamete donors to openly share their intention to donate their gametes (and share their identities) with the whole world, but the moment they have donated, outlawing disclosure of the exact same facts.

In our view, one would be wrong to favour a literal interpretation of regulation 19. This interpretation would lead to a number of problematic outcomes, not least being how it would render a whole range of innocuous acts unlawful, leading to absurd results. For example, infertile parents who use a gamete donor to have children would be regarded as breaking the law if they ever disclosed to the children that they were donor conceived. Such an interpretation would completely conflict with the right of donor-conceived children (as per section 41 of the Children’s Act[2]) to access information about their gamete donors, as it would be unlawful to ever tell such children that they were donor conceived.”

This article highlights that practice versus law might similarly not be 100% aligned in other countries too.

Spain: Only anonymous donations are allowed.

Banks / clinics have a legal obligation to ensure anonymity of the donor and guarantee confidentiality of the donors’ personal information and identity. The law entitles both patients receiving gametes and embryos and the children born from them, to obtain general information about the donors, however not including anything that reveals their identity.

US: Both anonymous and non-anonymous donations are allowed.

ASRM recommends the recording and preservation of donor contact information by banks/clinics, but the recommendations have no force of law. Regulation by states varies, and there is no centralized system for tracking donors.

UK: Anonymous donations are not allowed. Donor release age 18.

When the child reaches the age of 16, they can ask the HFEA for non-identifying information (a physical description, year of birth and medical history).

When the child reaches 18, they are entitled to identifying information from the HFEA, including name and last known address.

The recipients of a donation can ask the HFEA for non-identifying information about the donor at any time, and they can pass these details on to their child whenever they like.

The recipients can also find out how many other children have been born following their donor’s donations, their gender and year of birth.

Niamh sent in this fab comment: “I would love to see anonymity made illegal everywhere. I am from the UK where there is ID release at 18, but unfortunately there is a huge problem here with UK patients travelling abroad to access treatment in countries with anonymous donors (e.g. Greece, Cyprus, Spain, Czech) - these countries tend to have lower treatment costs and more availability of donors so shorter waiting times. Unfortunately, this practice is encouraged by UK clinics who have financial partnerships with clinics abroad. Vulnerable patients are being told this is the cheapest, quickest way for them to have a baby, without any education on the issues associated with anonymous donor conception.”

People agreed with Niamh, saying this reflects their situation, and that they regret donor anonymity.

Observations:

Writing this blog highlighted the following to us:

In countries where the law prohibits donor anonymity, the actual practices might not be 100% aligned to the law.
In the current digital age, with the prevalence of DNA testing, is the concept of donor anonymity an outdated one?
To date no parent that opted for an open donor has ever expressed any regrets to us. The only regrets shared with us by those that opted for ID release are about having to wait and missed opportunities for donor siblings to meet as children. However parents who opted for an anonymous donor frequently tell us that they now regret that decision in hindsight.
This is just the start of our investigation into views on anonymous donations – we’ll be interviewing industry experts, DCP, RPs and donors in order to share their views.

By Clare McDougall