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Rise in informal sperm donation raises legal issues
A rise in “informal family creation” is creating a lawless “wild west” that puts vulnerable parents and children at risk, warns an associate law professor.
Jess Feyder
A growing number of people are going online to start a family — seeking sperm donors or co-parents through popular social media groups and even mobile apps.
Lead author, Deakin Law School Associate Professor Neera Bhatia said that laws and regulations must keep pace to accurately reflect the dynamic and evolving nature of the family unit.
“The time is now for the law and regulatory bodies to pay closer attention to these trends,” Associate Professor Bhatia said.
“Currently, informal sperm donation is a kind of ‘wild west’ — a lawless state where nothing is governed or monitored.”
Currently, there are 16,000 members of the “Sperm Donation Australia” Facebook group, and the Australian-developed app “Just a Baby” operates like Tinder, with a location-driven swiping interface allowing people to meet potential egg or sperm donors, surrogates or those seeking to enter co-parenting agreements.
Both pathways circumvent the need to use regulated fertility clinics and avoid related costs, along with potentially burdensome administrative and medical processes.
Associate Professor Bhatia said the popularity of these emerging family-creating platforms is likely a result of several factors, in part driven by a larger number of single women and same-sex couples wanting to start a family.
“Many groups struggle to access formal family creation services like assisted reproductive technology (ART) and in-vitro fertilisation (IVF). This could be because of financial, medical or geographic barriers,” she stated.
“For example, the Victorian government’s recent promise to make IVF free has some limiting conditions.
“The pandemic also resulted in a sharp drop in sperm donations, and a lack of diversity of donors available through regulated channels.”
Associate Professor Bhatia explained that the trend toward informal family creation raised legal issues, including ambiguity around claims for child support or parental rights, as well as significant safety concerns.
“There is a lack of rigorous requirements or ability to screen donated sperm,” she explained.
“The obvious consequence is that unsafe and unscreened sperm with potential transmissible disease or other genetic conditions, putting the recipient and the potential child at risk.”
Associate Professor Bhatia continued: “There is also a level of uncertainty that the donated sperm belongs to the person professing to have made the donation.
“In a stark example from Japan, a woman has attempted to sue the sperm donor she found online for fraud, claiming she suffered shame and distress after learning that he had lied about his ethnicity, marital status, and place of university studies.”
“People seeking informal sperm donors online might also be risking their personal safety.
“There have been cases where women have been pressured towards natural insemination (sexual intercourse) by potential donors once they meet, despite initially agreeing to artificial insemination,” she explained.
“While conceiving a child and creating a family are important human experiences, we do not believe they should come at the cost of any woman’s health and safety.”
Associate Professor Bhatia outlined several key recommendations.
This includes greater public access to assisted reproductive technology and availability of donor sperm and eggs, along with an easier importation process for donated sperm and eggs from overseas.
She recommended that further removal of discriminatory language in legislation is necessary so that terminology is inclusive and accurately represents present-day society and diverse families.
This includes the removal of the requirement for same-sex couples to obtain a letter from a doctor stating they are unable to become pregnant to access ART.
Changes made to legislation should also consider a broader legal definition of “parent”, which encompasses co-parenting arrangements.
The next recommendation is for better education and awareness of informal avenues of family creation and the potential risks they impose.
This should include a register for informal sperm donors to record their details and ensure donor-conceived children have the same access to information, whether their conception was facilitated by an informal or formal process, Associate Professor Bhatia suggested.
