Many women choose to attempt conception with a clinic-recruited donor. The number of clinic donors available fluctuate and are still fairly low, but have increased since the reforms. Here’s a run-down on the steps involved and some of the legal issues.
If you decide to attempt conception with a clinic-recruited donor, your first step will be to visit your GP for a referral to a fertility clinic. If you can (for example through a support group such as Prospective Lesbian Parents) ask around about which specialists have experience working with same-sex couples.
Clinic websites contain a wealth of information about aspects of using fertility services to create your family, including Melbourne IVF and Monash IVF . The Fertility Society of Australia also lists all fertility clinics in Victoria.
Before receiving fertility services, Victorian law requires all potential clinic patients to go through a number of procedures (the clinic will assist you with these):
- a police check, to ensure neither of you has ever been convicted of a violent offence or charges have been proven against either party in relation to a sexual offence
- a child protection order check, to ensure neither of you has had a child removed from your care, and
- clinic counselling, to ensure you both understand the implications of donor conception and consent to the procedures involved.
An overseas police check is required if either party has resided overseas for a consecutive 12 month period in the past 10 years. There is a presumption against treatment for anyone who does not pass the police and child protection checks and treatment must not be provided. If barred, you can appeal to the Patient Review Panel, and subsequently to the Victorian Civil and Administrative Affairs Tribunal.
The intending birth mother is also required to undergo a series of medical checks, including basic fertility checks and blood tests, including for HIV.
Choosing a clinic donor
Since the Assisted Reproductive Treatment (2008) Act (ART Act) passed, some clinics have recruited new donors, including gay donors. A maximum of ten women (not families) may conceive with each donor, which can disadvantage couples hoping to both be birth mothers using the same donor. If this applies to you, let the clinic know; they are likely to try to help you to select a donor with whom this will be possible.
Clinic-recruited donors are health screened, counselled and give consent to the use of their sperm, to relinquishing all parenting rights to any child/ren conceived, and to releasing of their identity to the child at age 18, or beforehand with parental permission or if the child is assessed as sufficiently mature by a counsellor. The donor’s consent for use of their sperm lapses after a maximum of ten years, or earlier if specified by the donor.
You might be able to import sperm from overseas or interstate sperm banks, provided it meets the requirements of Victorian legislation: that it was not obtained commercially, identifying details of the donor are available, and the donor has been counseled by a counsellor providing services for a registered ART provider. You need permission from VARTA to import sperm – visit their website for more information about the guidelines for import or export of donor gametes (egg or sperm) or donor-produced embryos.
Options for attempting conception
The recent reforms gave equal access to lesbian couples and single women to a range of fertility treatments in Victoria, without being ‘medically infertile’. For many women, attempting conception at a clinic will probably begin with simple fertility testing, tracking of your cycle and intra-uterine insemination, or IUI.
If, however, you are older (generally 40 or above) or have compromised fertility for some other reason (diagnosed, or unknown but demonstrated by previous unsuccessful conception attempts) the clinic might recommend further testing and treatment, such as via pharmaceutical support for ovulation or IVF (see below under ‘When insemination is not working’). If you begin with IUI but are unsuccessful, the clinic is likely to recommend testing and further treatment.
Some women require the services of a surrogate to have a baby. Please read Information for prospective gay male parents (who are more likely to use surrogacy) and Information for prospective egg donors and surrogates for more information.
Your child/ren’s donor information
A guiding principle of Victorian law is that all donor-conceived children have the right to know their biological origins. Historically, same-sex parents have tended to be much more open about their children’s donor origins than heterosexual parents. After all, same-sex parents clearly require some assistance to conceive their children!
The Victorian Registry of Births, Deaths and Marriages (BDM) is responsible for registering information about children’s births and their donor information. If you conceive via a Victorian clinic, they will pass on the donor information to BDM. Please read Donor information and registers for information about how your donor information is lodged, stored, managed and released.
Contact before age 18 and the legal status of donors
The Victorian Status of Children Act, and the federal Family Law Act establish that a donor is not a legal parent. In the case of the federal law, this applies when conception occurred there was an ‘other intended parent’ – see below for what this could theoretically mean for single women.
The ART Act also says that clinic donors can obtain identifying information about children conceived using their sperm once the child is over 18, but consent is required from the parent before the child is 18, or donor-conceived person once they are 18, before the donor can receive this information. Non-identifying information can be released to all parties without consent. Identifying information about the donor can be released to parents with donor consent, and to the child without consent once the child turns 18, or beforehand with parental permission or if a counselor assesses them as sufficiently mature.
Some parents want their children to have the option of finding out about and/or contacting their donor before 18 if they wish. You may also be able to contact other families who used the same donor. Research indicates that some donor-conceived children are very interested in this information in their early teens or even younger. Some families have made such contact, to their children’s benefit.
It is important to know the possible legal ramifications of having ongoing contact with a donor. Most (but not all) clinic-recruited donors are happy to meet, if a child or family wishes. Some are not interested in ongoing contact. Some might want to have ongoing contact, and you might also want that. If not, and it came to a dispute in court, it is possible that a court would grant the donor some contact with your child. It is important to know how family law works in Australia. You will be your child’s legal parents, but anyone with ‘an interest’ in a child’s welfare (such as a grandparent, step-parent or known donor) can apply for a court order creating contact or other arrangements with regard to the child.
The issue is potentially more complex for single women. Since the recent reforms, Victorian law, in the Status of Children Act, is very clear that a donor is not a father or parent. However both Victorian and federal law come into play, should there be a dispute. The federal Family Law Act is ‘silent’ on the question of donors to single women, only severing the parental status of donors where there is an ‘other intended parent’.
If you had contact with your donor, he might, if a dispute reached court, seek to be recognised as a legal parent. It is yet to be tested what a court would decide if this was the case. This does not mean that a court would grant your donor parental responsibilities, especially if he has never had them. Legal parentage is only one factor in a court’s decision about issues like who should have contact with, live with and make decisions for a child. However, it is possible that even if a court did not grant parental status, they might grant your donor some contact with your child should he seek it. We highly recommend you seek legal advice on this issue.
While you need to be aware of the relevant laws should there be a dispute, it is also important to recognise that the motivations of clinic-recruited donors are very altruistic, and they are, in practice, very respectful of the wishes of parents and donor-conceived people.