A complete lack of legislation for informal sperm donations has left women vulnerable to coercion, health scares, and the very real risk that their children will have dozens of half-siblings they may never know.
For Emily, using a Facebook page to conceive was a more attractive idea than an IVF clinic, where a single cycle could set hopeful mothers back by more than $10,000. Most importantly to her, the informal route allowed her to know the donor personally.
In the years after her child was born, Emily learnt the same donor had fathered over two dozen children – a feat he allegedly boasted about to one of the other mothers as a “personal challenge”. The mothers are now locked in a frustrating battle to learn more.
If she knew then what she now knows about the donor, Emily told Lawyers Weekly, she “wouldn’t have chosen him”.
There are a number of reasons why women will turn to informal routes, including the prohibitively expensive costs in regulated spaces, the desire to directly connect with a donor, and a shortage of donors at IVF clinics. The latter poses a particular challenge for women who have a preference for cultural or ethnic backgrounds.
In comparison, the Facebook page Emily used – one of many across the world – currently has more than 22,000 members. There are frequent posts from potential donors, complete with pictures of themselves and short bios about their job, background and hobbies.
Neera Bhatia, associate professor and director of the law, health and society research unit at Deakin Law School, has been researching, writing and advocating about the risks and harms involved with online informal sperm donations since 2021. She has observed that informal donations is a “Wild West in the sense that it is a completely unregulated system, with no systems of control”.
Without legislation, governance and checks and balances, recipients essentially rely on an “honour system” and trust that the informal donor has fully disclosed their medical and family history, and has been completely transparent around the number of times they have donated.
For the former, fertility clinics are required to screen the sperm to test for sperm quality and inheritable or infectious diseases. While clinic testing cannot reveal neurodiverse conditions like autism or ADHD, the mandated screening does provide peace of mind to recipients.
Informal sperm donation cannot ensure that donors have been screened for any of the above, leaving women with informal donors at risk, as well as any child born as a result. This, along with a raft of other risks and harms to recipients and donor-conceived children, is a “public health crisis”, Bhatia said.
“There’s been very little political appetite to seriously consider informal sperm donation and look at mechanisms of regulating it or consider the motivations of donors or recipients. I think the reason for that is because the very idea of family creation, and having a baby, is probably considered an intimate and private pursuit from a societal perspective, and perhaps seen outside the realm of [political] intervention.
“I disagree. I think as intimate and as fundamentally universal the desire to want a child may be, there is a need here for state and federal government intervention to ensure that people are safe and protected in this pursuit,” Bhatia said.
Another of the risks Bhatia has observed in her research is an unfortunate trend of some women being coerced into sexual intercourse. In some cases, women might meet with a potential sperm donor after several conversations where they have agreed to artificial insemination: the expectation is that the woman will take the sperm away for at-home insemination.
However, they are then pressured by some sperm donors for “natural insemination” and feel compelled to have sexual intercourse with the donor to try to achieve a pregnancy. Where this occurs, it is a violation of a woman’s bodily and reproductive autonomy.
Bhatia explained that in some cases, women are in “vulnerable positions”, either because their fertility window may be closing, the alternative of using fertility IVF clinics is too costly, there is a shortage of donors available in clinics, and then they are “put on the spot” and feel compelled to have sex with sperm donors.
Going back to the lack of record keeping, Bhatia said there is no way to know how many informal donations have been made outside of taking a sperm donor at their word. This could mean recipients are having children who may have dozens of half-siblings they do not know about.
“The risks involved with the lack of record keeping are also very serious. A donor-conceived person could have, for example, 30 children or even more half-siblings and have no knowledge of their existence. As adults, they could end up meeting one another and accidentally, through no fault of their own, end up in a romantic relationship, not knowing they are half-siblings,” Bhatia said.
The situation becomes more concerning if they then go on to have children together.
While the Victorian government has considered a rapid review of the fertility sector, Bhatia said the review’s focus was not on informal sperm donation, while it was something that the review would briefly consider. Bhatia recommended that an independent wholesale review be considered about how best to regulate informal sperm donation.
This could mean many of these critical, public health issues that concern informal sperm donation will continue to fall through the gaps.
Regulated sperm donations far from perfect
The rapid review was triggered by a mix-up at Monash IVF that saw a woman give birth to someone else’s baby after the wrong embryo was transferred. The mistake was only realised after the birth parents asked for remaining embryos to be moved to another provider.
Bhatia said it was “clear” that even regulated systems of family creation through fertility clinics are flawed and need greater oversight, consistent national ART legislation, better governance and transparency.
The review has flagged it would consider a national register to enforce IVF clinic’s rule that a donor cannot donate to more than 10 families. As it currently stands, donors can freely move to new clinics and continue to donate without it being noticed.
Currently, there is also no restriction to prevent a donor from hitting the 10-families limit but continuing to donate informally. Further, while a donor is made to state how many biological children they have at the start of their clinic visits, there is no requirement to disclose the children they may go on to father after this date.
This was the case with Emily’s second child, conceived with a clinic donor, who had fathered 10 children from the clinic and eight informally. Other women have had similar experiences, with one reportedly having a child that had over 70 half-siblings.
Bhatia said she recommended a national register “so people know exactly how many donations have been made by one donor across the country”.
“Donors might cross borders in Australia, [so] even regulated fertility clinics need better oversight of where and how many donations. There is no way of knowing whether donors have made formal and informal donations,” Bhatia added.
Bonnie Phillips, director, principal and head of family and relationship law at Coulter Legal, said she has come across issues around the regulated spaces “relatively consistently over the last 10 years in particular”.
For example, one woman had hoped to use a specific male donor she had chosen until she learnt he had exceeded the 10-limit rule. While she sought out legal assistance, the legislation meant the donor could no longer be the right option for her, forcing her into considering other options.
Another woman was caught up in a parenting dispute with her donor following the birth of the child.
“Unfortunately, if client’s haven’t followed appropriate procedures, or haven’t understood their legal rights and obligations prior to conceiving a child with a donor (or a person who could properly be characterised as a donor from a legal perspective), issues can subsequently arise with respect to the involvement of the intended donor in the child’s life moving forward and the expectations of the parties,” Phillips told Lawyers Weekly.
Phillips explained that recipients can often have a “preconceived idea” about how the process will go but may not understand the nuance of the legislation or the different regulations within clinics. This can then result in women getting “quite far” down the path towards conceiving a child before they gain a clear understanding of the process, which can result in significant disappointment or subsequent disputes.
While donor agreements – entered into prior to conception – may not be legally enforceable, Phillips said they may assist in alleviating some of the issues that may arise and serve as a “good piece of evidence” as to what the intentions of the parties were should a dispute arise.
Another issue with the legislation in regulated spaces is a lack of cohesion across the nation. For example, while Victoria and South Australia have a 10-family limit, NSW and Western Australia have set a limit of five, and there are no specific limits in Queensland, Tasmania, the Northern Territory or the ACT, with clinics often setting their own limits in these states.
Phillips said it would be helpful to see more consistency between the states from the national review.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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