Donation Conception: Navigating the Past and Present.

The use of donor gametes (sperm and eggs) continues to help both individuals and couples in their journey to parenthood. As assisted reproductive technologies continue to develop, so must the law to ensure that donors, donor-conceived children and their parents know what information will be available to them or about them. 

Here's a quick summary of how the law on donor conception has developed over the years:

Donation made before 1 August 1991 

Those conceived using a donation made before 1 August 1991 cannot access information about their donors through official channels. This is because the Human Fertilisation and Embryology Authority (“HFEA”) was set up on 1 August 1991 and there are no official records of fertility treatments and subsequent conceptions before then.

There are ways that could make it possible for a donor conceived person to obtain information about the donor that made their conception possible. For example, they could try contacting the clinic where their parents received fertility treatment and they were conceived, or join the Donor Conceived Register, which aims to match donors and people conceived through donation prior to August 1991. 

Donation made between 1 August 1991 and 31 March 2005

Those who donated during this period at a HFEA licensed fertility clinic can contact the HFEA and request information regarding the number of children conceived through their donation. A donation can be used for conception in up to ten families but there is no limit on the number of children that can be born into these ten families. 

Donations made during this period were done so anonymously. This means that donor conceived people can only access non-identifying information about their donor, which would have been provided to the clinic at the time of their donation. The clinic would then have passed this information onto the HFEA to hold on their secure register.  

Individuals conceived via anonymous donation can apply to access this information at age 16. The only information that can be disclosed includes physical descriptions about the donor’s height, weight, eye, hair colour, year/ country of birth, ethnicity, whether their donor had other children at the time of their donation, and other non-identifying information the donor chose to disclose at the time – such as medical information (for example, if there is a history of a certain condition throughout their family). The legal parents of a donor-conceived child could ask for this information any point after the child’s birth. 

Donation made after 1 April 2005
Around this time, donor-conceived people and donors were consulted about a change in the law that would provide for more information about donors being accessible so that donor-conceived individuals could choose to find out more about their biological heritage. The consensus was that the door should be left open for donor conceived people to be able to identify their donors when they were adults (over the age of 18). 

The law now enables donor conceived people to access the following information about their donor:

• At age 16 years old, they can still request the non-identifying information set out above; and 
• At 18 years old, they can request identifying information including their full name, date, and town of birth as well as their last known address.

There was a transition period between 1 April 2005 and 31 March 2006 whereby clinics could continue using gametes donated anonymously, meaning that donors could choose whether they wanted to provide identifiable information or remain anonymous.  Those who donated before 1 April 2005 can now elect to remove their anonymity, but this cannot be reversed once done. 

After 1 April 2006, clinics had to use gametes from donors who made their donations pursuant to the new law (i.e. donations that were not made anonymously). Anonymous donations could not be used unless a family who had already conceived using an anonymous donation wanted to use the same gametes (namely, the same donation) to ensure that there was a genetic link between their children. 

It is important to note that donors do not have to respond to any attempted at contact by the donor conceived person, and they will not assume any legal or financial responsibility for them, providing the clinic followed the correct procedure required by the HFEA. 

Concluding Remarks

As we mark 18 years since the end of anonymous donation, it is important to reflect on how far the law has come since the HFEA was established. Attitudes have changed significantly, and openness with children about their conception is now widely understood to be in their best interests. 

As technologies continue to advance, the legal landscape will no doubt have to continue to evolve to address new challenges. For instance, the use of at home DNA testing kits has recently resulted in some cases of donors being contacted through online databases, as well as identifying donor-conceived genetic siblings, rather than through pathways that are regulated and controlled by the HFEA. Many of these sites now have ‘opt in’ options for such matching services, but law and policy will need to develop to ensure that the interests of all parties involved are protected.

For further insights into donor conception, surrogacy or other fertility law matters, please do not hesitate to get in touch with Irwin Mitchell’s Fertility Law Team of Excellence.