Baby Ventures

The choice should be yours

Many fears were highlighted with anonymity of the donor. This is one of the most crucial reasons why couples using donor sperm should go through accredited institutes to select their donors. Even the most thorough contract between a couple and a “known-private donor” can be fought in the Children’s Court should this party decide to claim parental rights.

When using a donor from an accredited medical institute your legal concerns are already taken care off. Any donor will renounce their paternal rights and responsibilities during the donation process. Sperm banks go through great lengths to protect both the donor and any prospective clients of theirs.

The current law in South Africa states that the process is anonymous and neither the donor nor the prospective client will be known to each other.

Children’s Bill of 2003 Draft legislation to replace the Child Care Act of 1983
The Human Tissues Act 65 of 1983 and the regulations issued under it also contain provisions to ensure that the donors of gametes used in an artificial insemination procedure remains anonymous. Thus, in terms of section 22(1)(C) OF THE Act, no person may publish “to any other person” any fact by which the identity of a living person from whose body any gametes has been removed for the purposes of artificial fertilisation of another person may possibly be established, unless the donor concerned has consented in writing to such publication. Apart from these provisions, a donor’s file may not be made available to any other person for inspection “unless any law otherwise provides or any court so orders (Regulation 6(2)(e).

Also Read: Donor Anonymity: Your Right to Choose
DONOR ANONYMITY: YOUR RIGHT TO CHOOSE

The UK changed their Donor Anonymity laws on the 1st of April 2005 where donors entering the programme from this date, will have to be what is termed identity-release donors, or a donor who makes his identity known if his offspring so wish, once they have turned 18. Up until then donors had the choice to remain completely anonymous. Many experts advised that the change in law would reduce the number of donors willing to join donor programmes in the UK.

Indeed, since the change in law, the number of donor applicants has dropped so drastically that the many from the UK have started approaching sperm banks in other countries, like the US, for assistance. A major concern is the rise in cost for donor sperm due to the lack of it. A decrease in donors will result in waiting lists and an increase in costs. Many fear the arrival of “illegal and unethical” sperm banks to cash-in on a greater demand with less supply.

In the USA the choice to be an anonymous donor or to have your identity released once the child turns 18 if the child so wishes, is up to the donor. The majority decline the option to be identified. In South Africa, he current law states that neither the donor nor the prospective client will be known to each other, as per The Human Tissues Act 65 of 1983.

Many other countries are looking at the same model as the UK, but the question is, is this the right way forward? Perhaps the UK example can rather lead to the conclusion that it is best to give donors the choice - either to be anonymous or identity release donors. The choice can also then lie with the couple or single parent who decides which type of donor will best suit them.

When looking at these debates, it’s important to understand the role of the donor. A donor is normally an individual willing to assist couples who do not have access to fertile semen to fall pregnant. He does not want claim to offspring all over the country. He does not want to “play parent” to children conceived from his gametes. He is merely a person willing to help couples who do not have access to male gametes in order to conceive. For this reason, many rather stay clear from donating when Identity Released Profiling is one of the terms.

The other side of the coin is that couples are now forced, in countries such as the UK, to purchase donor gametes with identity release profiles. Should it not be their choice as well? These couples will have to “import” sperm from other countries and will result in additional cost in the ART procedure.

Please note: Should the law in any country change regarding Donor Anonymity, it will not affect the donors already available, but only the donors after the date it is initialised. E.g. In the UK – all donors that entered programmes after the 1st of April 2005 will be affected.