The chief executive of the Human Fertilisation and Embryology Authority (HFEA), Peter Thompson, has this week (23 May 2022) announced that the HFEA is considering removing donor anonymity for egg and sperm donors in the UK. Under existing law, registered egg and sperm donors who donate through fertility treatment at UK licensed fertility clinics remain anonymous until the donor-conceived child reaches eighteen under a system known as ‘identity release’ donation. However, this is now under review as part of the HFEA’s current review of UK fertility law and its formulation of recommendations for fertility law reform to be put before government. In doing so, it reflects the growing popularity of direct-to-consumer DNA tests which are increasingly undermining donor anonymity in the UK and worldwide.
Peter Thompson said in response to the rapid uptake of direct-to-consumer DNA tests (through companies like AncestryDNA, 23andMe and MyHeritage) in the Guardian newspaper this week that “The technology of cheap DNA tests throws into question the underlying assumption [of anonymity]”. He went on to say “Given that, the responsible thing to do is to start a conversation about where we as a society want to go on these things. It’s a big change.” He added “You can see a position in the future where confidentiality just becomes impossible, whatever the attitude of families, the honest truth is that people will just find out.” The Guardian article also reports that one option under consideration by the HFEA is the removal of egg and sperm donor anonymity from the point of birth rather than when the donor conceived individual reaches age 18.
Current donor anonymity law in the UK
In April 2005, UK legislation was changed from a system of lifelong donor anonymity to one of identity release donor anonymity. These legal changes required a registered egg or sperm donor who donated through fertility treatment at a UK licensed fertility clinic from April 2005 to agree to the disclosure of their identity to the donor-conceived individual as from age 18. This meant that a donor-conceived person can request identifying information about their egg or sperm donor from the HFEA upon reaching 18. However, these legal changes did not give legal rights to donors and recipients to learn each other’s identities. The first cohort of donor conceived individuals in the UK will be able to apply directly to the HFEA next year (in 2023) for identifying information about their gamete donor so that they can seek to make contact with them should they so wish.
However, the current legal regime governing donor anonymity in the UK is increasingly challenged by the rapid uptake of direct-to-consumer tests. These tests enable people to explore personal ancestry and genetic history and trace genetic relatives including egg and sperm donors. It is estimated that more than forty million people worldwide have now taken a direct-to-consumer DNA test and this number will continue to grow. These at-home DNA tests increasingly enable people to compile and build family trees not just to trace genetic relatives, but also to inform an individual’s sense of identity and increase understanding about family health and genetic legacy. They can throw up unexpected information that challenges established family history and introduces new narratives about fertility treatment, egg and sperm donation, unplanned pregnancy, love, failed relationships and loss.
Impact of changes to donor anonymity law in the UK
Despite the increasing reality and intersection of direct-to-consumer DNA testing and donor conception, it is important to approach any changes to the current UK legal regime regulating donor anonymity and donor information with care. Donor conception has its own distinct character and role and it is an important aspect of family building in the UK. It can create a much-wanted child and family life for individuals and couples who otherwise could not have a child of their own. There is also increasing demand for donor eggs and sperm in the UK as more people embrace later-life parenthood and more solo parents and same-sex couples build families. Any legal changes that abolish donor anonymity or bring forward the disclosure of the donor’s identity will impact and have repercussions not just for donors, recipients and donor conceived individuals, but also their spouses and partners as well as the donor’s own children and family units.
If the donor’s identity were to become available at birth of a donor conceived child, it would bring with it a raft of questions and sensitive issues. How or to what extent can the donor’s own private and family life be protected? Will it make donors and their own families feel more anxious and vulnerable about their own personal situations? Will it make recipients and their donor-conceived children more curious and motivated to explore their genetic history? Will recipients and donor conceived children want to make contact with their donor at an early stage and seek more information about medical history as genomic technology and medical treatments increasingly move towards precision medicine? Will it bring with it increased risks of liability and responsibility concerning health problems and genetically transmitted diseases for donor conceived minors? How will the donor, their own children, partner and spouse react if they come face to face with recipients and their young donor-conceived offspring during childhood and adolescence? Will there be increased psychological and mental health benefits or detriments for all involved? Will there be increased contact between a donor’s own children and their donor-conceived genetic half-siblings and if so what will the outcome of this be?
Whilst registered egg and sperm donors who donate through fertility treatment at UK licensed fertility clinics do not hold legal parentage or parental responsibility, nor are they financially liable for donor conceived offspring there is much more to think about than just the constituent legal status which attaches to parenthood. There are also complex and evolving issues around donor privacy and protection, rights and access to donor information, understanding of genetic identity, medical history and predispositions and the nature and character of family life.
Specialist Fertility and Family Law
Specialist fertility and family law advice navigates many complex legal and wider issues associated with fertility treatment, donor conception and direct-to-consumer genetic testing. It creates bespoke legal and practical action plans about conception, family creation, biological and genetic identity and legacy. It also helps effectively navigate many complex fertility and family law issues. It can:
- Advise on issues and options for managing communication and relationships with biological parents, genetic half-siblings and other genetic relatives.
- Advise, represent or defend individuals in legal proceedings for an application for a Declaration of Parentage to resolve an issue about biological and legal parentage following a direct-to-consumer DNA test (e.g. to add or remove a name from a birth certificate).
- Resolve a legal dispute about the care and upbringing of a donor conceived child.
- Create a tailored legal action plan to manage complex family situations and dynamics.
Need a fertility lawyer or a family lawyer? If you would like to discuss your family building needs or you would like specialist fertility, donor conception and family law advice contact Louisa Ghevaert by email louisa@louisaghevaertassociates.co.uk or by telephone +44 (0)20 7965 8399.
