PER/PELJ - Pioneer in peer-reviewed, open access online law publications
Authors Nicole Bouah Carmel Jacobs
Affiliation University Western Cape, South Africa
Email 3643523@myuwc.ac.za; cajacobs@uwc.ac.za
Date Submitted 8 November 2022
Date Revised 22 February 2024
Date Accepted 22 February 2024
Date Published 5 June 2024
Editor Prof W Erlank
Journal Editor Prof C Rautenbach
How to cite this contribution
Bouah N and Jacobs C "A Child's Right to Identity in the Context of Embryo Donation: Lessons from Australia and New Zealand, Part 2" PER / PELJ 2024(27) - DOI http://dx.doi.org/10.17159/1727-3781/2024/v27i0a15132
Copyright
DOI http://dx.doi.org/10.17159/1727-3781/2024/v27i0a15132
Abstract
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In part 1 of this article the current level of protection of the right |
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Keywords
Assisted reproductive technologies; disclosure; donor-conceived child; embryo donation; gamete donor.
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1 Introduction and background
In part 1 of this article the current level of protection of the right to identity at both the national and the international levels was considered in the case of embryo donation. It was concluded that at a national level the National Health Act (NHA),
1
* Nicole Bouah. LLB LLM (UWC). Associate, Apex Fund and Corporate Products SA. Email:
3643523@myuwc.ac.za
. ORCiD: https://orcid.org/0000-0003-0447-3916. ** Carmel Jacobs. LLB (UWC) LLM (UP) PhD (Uni Leiden). Senior Lecturer, Department of Private Law, University of the Western Cape, South Africa. Email: cajacobs@uwc.ac.za. ORCiD: https://orcid.org/0000-0001-5148-4269. 1 National Health Act 61 of 2003 (the NHA). 2 GN 1165 in GG 40312 of 30 September 2016; GN 251 in GG 44321 of 25 March 2021. 3 Children's Act 38 of 2005 (the Children's Act). 4 UN Convention on the Rights of the Child (1989) (the CRC). 5 African Charter on the Rights and Welfare of the Child (1990) (the ACRWC).
With the rise of the use of spare embryos as part of the Assisted Reproductive Technology (ART) enterprise, the social and legal acceptability of third-party reproduction varies across countries.
6
6 Hammarberg, Johnson and Petrillo 2011 Journal of Reproductive and Infant Psychology 176. Also see Bartholomaeus and Riggs 2019 New Genetics and Society 1. 7 Fertility Society of Australia date unknown https://www.fertilitysociety.com.au/donor-programme-australia-new-zealand/#embryo-donation.
2 Australia
In Australia, embryo donation is legal in all its states and territories.
8
8 The first babies born through embryo donation were conceived in the 1980s during the "pre-disclosure era", a period in which such offspring were not entitled to identifying information about their donors either through held registers or clinic records. See Millbank et al 2017 J L & Med 803.
but there are national Guidelines and a Code of Practice.
9
9… Bartholomaeus and Riggs 2019 New Genetics and Society 2. 10 In developing these Guidelines, the Australian Health Ethics Committee was conscious of: "the moral acceptability of ART, the complex biological connections and social relationships that occur in the context of, or as a result of, ART; difficulty in balancing the needs, concerns, and interests of [the donor couple, the recipient couple and the child born] or any child within the family unit who may be affected by that birth". See NHMRC Ethical Guidelines 19. 11 These guidelines also recommend counselling and the limitation of the number of families created from donations. See Bartholomaeus and Riggs 2019 New Genetics and Society 2. "These Ethical Guidelines provide an overarching framework for the conduct of ART in both clinical practice and research and, when read in conjunction with federal and state or territory legislation, create a robust framework for the conduct of ART in Australia … All activities referred to in these Ethical Guidelines must be carried out in compliance with existing laws and regulatory frameworks." See NHMRC Ethical Guidelines 11.
The NHMRC Guidelines protect the interests of children born through embryo donation.
12
12 Guiding Principle 2 of the NHMRC Ethical Guidelines. 13 NHMRC Ethical Guidelines paras 4.2.9, 4.4.1, 6.1. See also ss 5(c), 56 and 71 of the Assisted Reproductive Treatment Act 76 of 2008. 14 "These Ethical Guidelines acknowledge the importance of the biological connection and support the right of an individual to know their genetic origins. The voluntary exchange of information between the donor, recipient and the persons born, facilitated by donor registries, is central to upholding this right." See NHMRC Ethical Guidelines 11.
Paragraph 9.2 of the NHMRC Guidelines, which deals with the maintenance of appropriate records, provides for the following:
9.2.1 Clinics must ensure that all relevant information about parties involved in donor conception programs … are recorded so that this information is available to potential recipients of the donation, any persons born, and/or the gamete or embryo donors.
9.2.2 Information about all parties involved in a donor conception program … must be kept indefinitely (or at least for the expected lifetime of any persons born); in a way that is secure but is accessible to any relevant party.
15
15 NHMRC Ethical Guidelines 85.
The RTAC Code of Practice provides that with regard to embryos, clinics must comply with the NHMRC Guidelines on the use of ART and any applicable state
16
16 "While all states and territories follow the national guidelines, specific legislation mentioning embryo donation is present in four jurisdictions: Victoria, New South Wales, South Australia and Western Australia." See Bartholomaeus and Riggs 2019 New Genetics and Society 2. 17 RTAC Code of Practice for Assisted Reproductive Technology Units para 2.8(a)-(b).
Notably, counselling for both the donor and recipient couples is mandatory
18
18 NHMRC Ethical Guidelines paras 4.3-4.4. Also see RTAC Code of Practice for Assisted Reproductive Technology Units paras 2.2.1(g) and 2.8(d). 19 In specific states ART clinics are obliged to record details about donors, recipients and offspring in the central state register. See Hammarberg, Johnson and Petrillo 2011 Journal of Reproductive and Infant Psychology 178.
The NHMRC Ethical Guidelines and the RTAC Code of Practice provide that ART clinics are obliged to maintain detailed records, which includes identifying and non-identifying information of the donor and recipient couples so that persons born through embryo donation are able to trace their genetic origins.
20
20 See Hammarberg, Johnson and Petrillo 2011 Journal of Reproductive and Infant Psychology 178.
Although the national Guidelines and Code of Practice offer protection for the right of persons born from donated embryos to know the details of their genetic origins,
21
21 NHMRC Ethical Guidelines paras 4.2.9, 4.4.1, 6.1. 22 Hammarberg, Johnson and Petrillo 2011 Journal of Reproductive and Infant Psychology 178.
For example, in the state of Victoria, in terms of the Victorian Assisted Reproductive Treatment Act of 2008, an addendum is attached to the birth certificates
23
23 Section 17B(2) of the Assisted Reproductive Treatment Act 76 of 2008 states that "the Registrar must attach an addendum to the certificate stating that further information is available about the entry". 24 This protects the child's right to personal, biological and family identity, but also national identity should the donors be of a different nationality from that of the recipients. See Allan 2016 Family Matters 52.
origins, but would also increase the likelihood of the child finding out about her/his biological origins, even if her/his parents do not reveal this to her/him.
25
25 Allan 2016 Family Matters 52. 26 Allan 2019 https://www.health.wa.gov.au/~/media/Files/Corporate/Reports-and-publications/HRT/Review-of-HRT-and-Surrogacy-Act-Part-2.pdf xxii.
In New South Wales the particulars of donor-conceived children as well as the details about their donor and recipient parents are recorded in a voluntary and central register.
27
27 These individuals must also advise who may be given access to this information. See ss 32C, 33, 33A and 33B of the Assisted Reproductive Technology Act, 2007. See also NSW Health 2022
https://www.health.nsw.gov.au/art/Pages/the-central-register.aspx
. 28 Section 33A, 33B and 33C of the Assisted Reproductive Technology Act, 2007. 29 Section 33(1) of the Assisted Reproductive Technology Act, 2007. 30 The Assisted Reproductive Technology Act, 2007 provides for a central register which allows applications for information from persons born through gamete donation. Also see Hammarberg, Johnson and Petrillo 2011 Journal of Reproductive and Infant Psychology 179. 31 A match occurs through the use of the same donor code. See Johnson 2014 Indian Journal of Medical Research 10. 32 Now the Assisted Reproductive Treatment Act, 1988. See Hammarberg, Johnson and Petrillo 2011 Journal of Reproductive and Infant Psychology 179.
Therefore, while subtle legislative differences exist between states in Australia, embryo donation is generally considered a socially acceptable and legally permissible means to form a family.
33
33 Hammarberg, Johnson and Petrillo 2011 Journal of Reproductive and Infant Psychology 176.
absence of a central register in each state or at a national level.
34
34 Hammarberg, Johnson and Petrillo 2011 Journal of Reproductive and Infant Psychology 179. Donor-conceived children may also struggle to obtain information about their donors due to laws not being retrospective in their particular state or because the records may have been destroyed. See Power 2017 https://www.news24.com/parent/Fertility/Trying_to_conceive/why-donor-conceived-children-need-to-know-their-origins-20170328.
3 New Zealand
In New Zealand,
35
35 Embryo donation has been available in New Zealand only since late 2005. See Goedeke date unknown https://www.fertilitynz.org.nz/information/donation-and-other-options/embryo-donation/. 36 Wilsdon 2019 J L & Med 691. 37 Goedeke and Daniels 2018 Journal of Reproductive and Infant Psychology 1.
New Zealand's embryo donation policy and practice is an open donation process, allowing offspring to access genetic information.
38
38 Goedeke and Daniels 2017 Qualitative Health Research 1402. 39 Goedeke and Daniels 2018 Journal of Reproductive and Infant Psychology 2. 40 Counsellors will note the donor couples' desires concerning the recipient couples' characteristics and assist the prospective recipients to compile profiles from which donors will choose whom they would like to meet face-to-face in joint counselling. Individual counselling helps to make sure that prospective donor and recipient couples have analysed the relevant issues in depth before they are shown each other's profiles. See Goedeke and Daniels 2018 Journal of Reproductive and Infant Psychology 2.
Furthermore, New Zealand has a unique additional requirement: donors and recipients must meet prior to the donation for joint counselling sessions.
41
41 New Zealand is at present the only country in the world with this policy. See Goedeke and Daniels 2018 Journal of Reproductive and Infant Psychology 1. "Joint counselling sessions address issues on which the Ethics Committee for Assisted Reproductive Technologies (ECART) requires agreement." Also see Goedeke and Payne 2010 Human Reproduction 2822. 42 Goedeke et al 2015 Human Reproduction 2343. Research suggests that many couples opt not to donate due to the fear of placing their embryos in the "wrong
family". Concerns about the child's well-being and a sense of ongoing emotional ties are also influential factors. For these reasons, allowing prospective donors to select a recipient couple whereby they may specify desired characteristics, for example, "the recipients' age, marital status, ethnicity, socioeconomic class or sexual orientation", will arguably lead to greater ease. These open-identity conditions allow for the prospect of the donors, the recipients and the child born to have varying degrees of ongoing contact. See Goedeke and Daniels 2018 Journal of Reproductive and Infant Psychology 3.
counselling sessions, prospective donor and recipient couples become acquainted with one another and discuss the prospects of exchanging information and retaining contact.
43
43 Goedeke and Daniels 2018 Journal of Reproductive and Infant Psychology 2. 44 Goedeke and Daniels 2018 Journal of Reproductive and Infant Psychology 2. 45 Gibbs and Scheman 2013 New Zealand Journal of Social Sciences Online 16. 46 New Zealand Parliament Government Response 5. 47 The Advisory Committee on Assisted Reproductive Technology (ACART) has released a consultation document for comment on "potential strategies to strengthen offspring access to information about their origins". See ACART Proposed Donation Guidelines 21. The debate concerning birth certificates is ongoing. See Goedeke and Daniels 2018 Journal of Reproductive and Infant Psychology 8; Goedeke and Daniels 2017 Bioethics Beyond Altruism 127-128.
The HART Act provides for the recording, storing and sharing of information between donors of donated embryos and donor offspring.
48
48 Daniels 2008 https://www.researchgate.net/publication/228349203_Guidelines_ for_embryo_donation_for_reproductive_purposes_in_New_Zealand_A_childfamily_approach 6. 49 Additionally, donor offspring who are 18 and above may consent to the disclosure of identifying information to their donors. See Daniels 2008 https://www.researchgate.net/publication/228349203_Guidelines_for_embryo_donation_for_reproductive_purposes_in_New_Zealand_A_childfamily_approach 6.
This alignment towards "openness" is supported by several studies on embryo donation done in the country.
50
50 Goedeke Embryo Donation in New Zealand 165; Goedeke et al 2015 Human Reproduction 2344-2346.
ties.
51
51 Goedeke and Daniels 2018 Journal of Reproductive and Infant Psychology 3. 52 Goedeke and Daniels 2018 Journal of Reproductive and Infant Psychology 3. 53 See Goedeke and Daniels 2017 Bioethics Beyond Altruism 121; Blyth 2012 Reproductive Biomedicine Online 719-726; Daniels, Grace and Gillett 2011 Human Reproduction 2783-2790.
Therefore, with the awareness of the child's right to have knowledge about his her/his genetic origins
54
54 Goedeke and Payne 2010 Human Reproduction 2827. 55 Goedeke and Daniels 2018 Journal of Reproductive and Infant Psychology 2.
4 Analysis
4.1 Similarities in approaches
Like Australia and New Zealand, South Africa also offers embryo donation as a means of combatting infertility. Further, all three jurisdictions make provision for the maintenance of appropriate records of information of all parties involved in the embryo donation process, albeit using different systems.
56
56 Part 6 and 7 of the Assisted Reproductive Treatment Act 76 of 2008; s 63 of Human Assisted Reproductive Technology Act, 2004; GN 1165 in GG 40312 of 30 September 2016, para 5.
Both Australia and New Zealand's national legislation and guidelines encourage the right of children to know their biological origins which encapsulates the right to know their genetic parents and siblings. Another similarity between these two jurisdictions relates to the provision of mandatory counselling. This has been shown to be an excellent tool for both the donor and recipient couples to thoroughly consider the impact of their decisions on the prospective child to be born. Discussing the method and timing of disclosure will ensure that the child's identity interests and wellbeing are protected.
4.2 Differences in approaches
The main difference between South Africa, Australia and New Zealand is the duty to disclose. In South Africa the primary focus is the preservation of the anonymity of the donors as the divulgence of the identities of the genetic
parents to the embryo-conceived child is prohibited.
57
57 Section 19 of the NHA; s 41(2) of Children's Act; GN 1165 in GG 40312 of 30 September 2016.
Another difference is the method of storing information and the purpose for which these records are maintained. Unlike South Africa's method of recording the donors' particulars in a central bank for an undefined period or purpose, Australia's NHMRC Guidelines specifically articulates that the donors' particulars should be stored indefinitely for the expected life duration of the donor-conceived person and made accessible not only to the donor-conceived child her/himself, but also to her/his recipient parents or any other relevant party.
58
58 Other relevant parties include other biological family members. See NHMRC Ethical Guidelines 24. 59 The lack of a national register creates difficulty in accessing information and creates a class system amongst donor-conceived persons based on the state in which they were conceived. See Shepherd 2023 https://www.theguardian.com/science/ 2023/feb/08/urgent-calls-for-australia-wide-register-of-sperm-donations-amid-concerns-about-prolific-donors. 60 Section 3(f) of the Human Assisted Reproductive Technology Act, 2004.
In South Africa, although section 28(1)(a) of the Constitution of the Republic of South Africa, 1996 protects the child's right to a national identity and entitles a child to a birth certificate, the birth certificate would reflect the names of the recipients only and make no mention of the identities of the donors or that further information is available regarding the child's biological origins.
In Australia, the protection of children born through embryo donation is not uniform, as the legislation differs from state to state. While children in the State of Victoria will benefit from the addendum to their birth certificates alerting them to the existence of additional information surrounding their biological origins, children in other states face greater challenges in attaining this knowledge. Furthermore, the age at which children in their
adolescence will be able to access this additional information will also depend on the age restriction of their particular state.
Unlike Australia, New Zealand provides for the uniform age of 18 for donor-conceived persons to access information across the country. Hence, an addendum to the child's birth certificate like that implemented in Australia has been rejected in New Zealand as the decision to disclose lies with the recipient parents. Furthermore, the prior meeting between the donor and recipient parents is a unique aspect.
61
61 While counselling should be mandatory for both the donors and recipients, meeting prior to the donation should be made optional. In-person meetings may not always be possible and thus it is suggested that virtual meetings should also be an option.
New Zealand's approach thus seems akin to a middle ground between the child's rights and that of the recipient parents, with South Africa on one end elevating the interests of the donors and recipients
62
62 AB v Minister of Social Development 2017 3 SA 570 (CC) paras 155-161.
5 Recommendations
5.1 Safeguarding the child's right to identity at an international level
International embryo donation is already a reality, and this raises concerns about the present protection of children's rights.
63
63 Embryo Donation International date unknown https://www.embryodonation. com/donate-your-embryos.php. 64 Clark "Ethical Implications of Embryo Adoption" 213. 65 With regard to other forms of ART, there have been calls for the adoption of an international convention, for example, in the case of surrogacy. See Mohaparea 2015 Loyola University International Law Review 25-26. 66 UN Enable date unknown https://www.un.org/esa/socdev/enable/convinfofaq.htm. 67 UN Enable date unknown https://www.un.org/esa/socdev/enable/convinfofaq.htm. 68 Mohaparea 2015 Loyola University International Law Review 55.
children born of such illegal arrangements.
69
69 Mohaparea 2015 Loyola University International Law Review 55. 70 Page Artificial Womb Technology 45.
While international legal instruments would serve as critical tools to convey the necessary concrete change in attitudes around the rights and interests of children born through embryo donation, the endorsement and ratification of international instruments is insufficient to bring about substantial change.
71
71 Neumayer 2005 Journal of Conflict Resolution 925. The poor political will of ratifying states remains a challenge with many human rights instruments. See Hill 2010 Journals of Politics 1162.
Second, the CRC Committee could draft a General Comment
72
72 Similar calls have also been made in favour of drafting a new General Comment on surrogacy and the adoption of a Hague Convention on donor-conceived children. See ISS date unknown
https://www.iss-ssi.org/index.php/en/
. 73 The CRC is the most widely ratified international human rights instrument which applies to all children under 18 in all contexts. See UNHR Office of the High Commissioner 2021 https://www.ohchr.org/EN/HRBodies/CRC/Pages/Discussion 2020.aspx. 74 Baird 2019 Business and Law 116. 75 This definition should be premised on "an understanding of identity as a spectrum of significant personal characteristics and social ties". McCombs and Gonzalez 2007 https://scm.oas.org/pdfs/2007/cp19277.pDF 1–2. 76 McCombs and Gonzalez 2007 https://scm.oas.org/pdfs/2007/cp19277.pDF 1–2.
A General Comment may also be vital to the work of the Permanent Bureau of the Hague Conference on Private International Law (Hague Conference) on the development of a potential private international law agreement, as well as to the efforts of the International Social Service (ISS) network on formulating a list of principles with the objective of protecting the rights of children in the context of international embryo donation.
77
77 McCombs and Gonzalez 2007 https://scm.oas.org/pdfs/2007/cp19277.pDF 1-2.
General Comment is disadvantageous in that it would not be legally binding.
78
78 The views of governments and judges outweigh this. See Geber, Kyriakakis and O'Byrne 2013 MJIL 7.
Third, a Convention by the Hague Conference (HCCH) may be ratified.
79
79 Mohaparea 2015 Loyola University International Law Review 26, 36, 43. 80 HCCH date unknown https://www.hcch.net/en/projects/legislative-projects/ parentage-surrogacy. 81 "The Experts Group is currently focusing on developing a general private international law instrument on legal parentage; and a separate protocol on legal parentage established as a result of international surrogacy arrangements." See HCCH date unknown https://www.hcch.net/en/projects/legislative-projects/ parentage-surrogacy. 82 Page Artificial Womb Technology 47-48. 83 Bacalso and Mihajlović Age Matters! 9.
Fourth, the ISS
84
84 The ISS is an international NGO founded in 1924. With its presence in more than 120 countries, the ISS is a global actor in promoting child protection and welfare through its training projects, awareness campaigns and advocacy work. See ISS date unknown
https://www.iss-ssi.org/index.php/en/
. 85 The voices of children born through surrogacy have also been elevated through the work of the ISS, that has since 2013 called for the urgent regulation of international surrogacy arrangements and in 2016 launched an initiative to draw up the Verona Principles to guide international policy and legislation. These efforts were supported by and contributed to by the CRC Committee as well as the HCCH. See ISS date unknown
https://www.iss-ssi.org/index.php/en/what-we-do-en/surrogacy
. 86 Childwatch International Research Network 2013 https://www.childwatch.uio.no/ news/2013/international-surrogacy%3A-a-new-field-of-investigat.html. 87 Childwatch International Research Network 2013 https://www.childwatch.uio.no/ news/2013/international-surrogacy%3A-a-new-field-of-investigat.html.
representatives to come to an agreement on the necessity of regulating embryo donation at international level.
88
88 Childwatch International Research Network 2013 https://www.childwatch.uio.no/ news/2013/international-surrogacy%3A-a-new-field-of-investigat.html.
An African instrument may not gain the support of African nations due to the fact that ART raises some cultural concerns.
89
89 ART may even be primarily rejected based on traditional values. See Setenane Assessing the Ethico-Cultural Implications 3. Studies completed in West Africa expressed concern about the genetic aspect involved in gamete donation and the ethics surrounding the duty to one's clan. See Écra et al 2017 Open Journal of Obstetrics and Gynaecology 600-601. 90 Gerrits and Shaw 2010 F, V & V in ObGyn 194. 91 Setenane Assessing the Ethico-Cultural Implications 3. 92 Gerrits and Shaw 2010 F, V & V in ObGyn 194.
5.2 Safeguarding the child's right to identity at the national level
First, the child's right to a legal identity must be safeguarded as it is from this that the right to personal, biological, genetic, family, sibling and national identities stems.
93
93 Page Artificial Womb Technology 40-41. 94. Venkov 2018 https://www.thetornidentity.org/2018/12/13/children-right-legal-identity. 95 "The nature of our society is such that we are prevented from knowing who we are...". See Smith 2020 Cath U L Rev 371. Today's birth certificates have become method for social parents to withhold the fact from their children that they were conceived through a donated embryo. Mundy 2013 https://newrepublic.com/article/ 112375/birth-certificates-age-adoption-and-egg-donation. 96 Mundy 2013
https://newrepublic.com/article/112375/birth-certificates-age-adoption-and-egg-donation
. 97 The New South Wales approach may be followed. This mandates all ART providers to submit mandatory information of every child born from ART treatment. Failure to do so would subject the ART provider to a penalty. See s 33 of the Assisted Reproductive Technology Act, 2007.
and that further information is available about the child's birth.
98
98 Adams et al 2019 https://www.news24.com/parent/fertility/trying_to_conceive/ experts-answer-your-questions-on-donor-conception-and-ivf-20190625. 99 Adams et al 2019 https://www.news24.com/parent/fertility/trying_to_conceive/ experts-answer-your-questions-on-donor-conception-and-ivf-20190625. 100 Hammarberg, Johnson and Petrillo 2011 Journal of Reproductive and Infant Psychology 179. 101... Jolly 2017 https://www.theguardian.com/lifeandstyle/2017/jan/21/donor-siblings-do-ties-of-blood-matter. 102 At age 18 individuals can make their own decisions and will have greater emotional maturity. It is an opportunity for these individuals to seek further information which their parents cannot provide. See Graham 2022 Reproductive BioMedicine and Society Online 196. Internationally there has been a trend towards the recognition of a donor-conceived person's right to know her/his origins. Austria is the only country that allows children as young as 14 to have access to this information, whilst the age of 16 is more common in countries across Europe such as Germany and the Netherlands. See Clark 2012 Ga J Int'l & Comp L 621. However, the legal position in South Africa is that donor anonymity is a legal requirement, as indicated in s 41(2) of the Children's Act, which prohibits the child from accessing any information that may reveal the donor's identity. The proposal for the right to access identifying information at age 18 would be a step in the right direction with the end goal being the age of 16. See Thaldar and Shozi 2022 SAMJ 409. 103 "Sufficiently mature" is not defined in law, but Sweden's National Board of Health and Welfare has clarified that this age is "interpreted to mean at attainment of majority" i.e. at the age of 18 years. See Gottlieb, Lalos and Lindblad 2000 Human Reproduction 2052. Also see AB v Minister of Social Development 2017 3 SA 570 (CC) para 23.1. While the recipient parents may argue that they are in the best position to determine the child's level of maturity, in the state of Victoria the Victorian Assisted Reproductive Treatment Authority (VARTA) will release the donors' identifying details to the child before they turn 18 years only if a VARTA counsellor considers the child sufficiently mature. See VARTA date unknown https://www.varta.org.au/after-donor-conception/i-am-parent-donor-conceived-person; Broughton 2018 https://www.timeslive.co.za/sunday-times/news/2018-08-11-let-children-know-their-genetic-origins-say---child-law-experts. 104 Page Artificial Womb Technology 42.
A birth registration form specifically designed to address the practice of embryo donation should accompany the child's birth registration.
105
105 Section 33 of the Assisted Reproductive Technology Act, 2007. This "Embryo Donor-Conceived Offspring Birth Registration Form" would require the following information: the number of children born as a result of the embryo donation; the children's full names; birth dates; gender; weight at birth. See example: Embryo Donation International 2014 https://www.embryodonation.com/downloads/ Embryo%20Donor-Conceived%20Offspring%20Birth%20Registration%20Form.pdf. 106 The Births and Deaths Registration Act 51 of 1992 provides that all births must be registered within 30 days. See DHA date unknown http://www.dha.gov.za/index.php/ civic-services/birth-certificates. 107 DHA date unknown http://www.dha.gov.za/index.php/civic-services/birth-certificates. 108 Embryo Donation International date unknown https://www.embryodonation.com/ embryo-recipient-idp.php. 109 Teman and Berend 2020 Journal of Family Issues 2.
The child's right to a nationality is protected, based on the principles of jus sanguinis or jus soli.
110
110 Pryce 2016 Ind J Global Legal Studies 932. 111 Page Artificial Womb Technology 43. 112 With the increased number of children born through embryo donation, it is foreseeable that a remarkably large group of children will face the same challenges as children born abroad and conceived through surrogacy, egg donation and sperm donation – who have been denied the nationality of their legal/social parents. See Nichol 2016 Michigan State Law Review 907. 113 Tucker date unknown https://pved.org/thelegalitiesofivf.php.
The NHA, Regulations relating to the Artificial Fertilisation of Persons
114
114 GN 1165 in GG 40312 of 30 September 2016; GN 251 in GG 44321 of 25 March 2021. 115 The definition adopted by the World Health Organisation could be applied. See Zegers-Hochschild et al 2009 Fertility and Sterility 1520. 116 Children's Act, s 41(1): "A child born as a result of artificial fertilisation or surrogacy or the guardian of such child is entitled to have access to – (a) any medical information concerning that child's genetic parents; and (b) any other information concerning that child's genetic parents but not before the child reaches the age of 18 years." S 41(2): "Information disclosed in terms of subsection (1) may not reveal the identity of the person whose gamete was or gametes were used for such artificial fertilisation or the identity of the surrogate mother." 117 GN 1165 in GG 40312 of 30 September 2016, para 5. 118 Should an individual under the age of 18 years approach the clinic with the request to access information regarding her/his genetic origins, the clinic should arrange for counselling with a professional who has the appropriate experience in such decision-making processes and evaluate whether the individual is emotionally mature and has the capacity to fully comprehend the nature of the request. See NHMRC Ethical Guidelines para 5.9.2. 119 Embryo Donation International date unknown https://www.embryodonation.com/ embryo-recipient-idp.php. 120 Lessons should be drawn from the legal positions in Australia and New Zealand.
6 Concluding remarks
In conclusion, rapid developments in ART have caused countries to re-evaluate the way in which identity formation in children is viewed and have led to calls to modify existing legislation to accommodate these unique challenges. Embryo donation is still a novel practice in South Africa and without comprehensive national legislation or international guidelines the unregulated nature of this practice as opposed to other forms of ART places children in a position of uncertainty.
121
121 The lack of specific legislation governing embryo donation in South Africa creates uncertainty surrounding the screening of donors; the matching process; the parties' legal rights and responsibilities; and the handling, storage and transfer of embryos and the overall risks thereof. Embryo donation is similar to the adoption of an infant as both processes produce a family structure where neither parent is genetically related to the child. However, the former allows the recipient mother to carry and deliver the child, thus giving the recipient parents parental rights prior to the birth as opposed to having to rely on the biological mother to relinquish her rights after birth. Furthermore, no adoption order is required, and the child born from embryo donation is effectively considered the biological child of the recipient couple. See Mpedi 2023 https://www.dailymaverick.co.za/opinionista/2023-04-23-south-africa-needs-legislation-to-regulate-and-formalise-embryo-adoption/.
Clarity is thus needed on the meaning of identity rights with regard to various forms of ART, and legislative reform should reflect the clarified position. Not only should children have the right to know the truth about their origins, but prospective recipient couples considering embryo donation need to be made aware of the concomitant social, psychological and legal complexities. The time has undoubtedly come for the South African legislature and the international community to formalise the realisation of the right to identity of all donor-conceived children. This paper confirms that this is not an insurmountable challenge. There are a number of steps that can be taken at both a national and an international level to enforce the identity rights of children born through gamete and embryo donation. It is up to South Africa and the international community to decide how urgently it wishes to take these steps.
Bibliography
Literature
ACART Proposed Donation Guidelines
Advisory Committee on Assisted Reproductive Technology (ACART) Proposed Donation Guidelines: For Family Gamete Donation, Embryo Donation, Use of Donated Eggs and Donated Sperm and Surrogacy (Advisory Committee on Assisted Reproductive Technology Wellington 2017)
Allan 2016 Family Matters
Allan S "Donor Identification: Victorian Legislation Gives Rights to All Donor-Conceived People" 2016 Family Matters 43-55
Bacalso and Mihajlović Age Matters!
Bacalso C and Mihajlović D Age Matters! Understanding Age-Related Barriers to Service Access and the Realisation of Rights of Children, Adolescents and Youth (Youth Policy Labs and UNICEF Europe and Central Asia Regional Office Berlin 2018)
Baird 2019 Business and Law
Baird N "Commercial Surrogacy and the Sale of Children: A Call to Action for the Committee on the Rights of the Child" 2019 Business and Law 115-136
Bartholomaeus and Riggs 2019 New Genetics and Society
Bartholomaeus C and Riggs D "Embryo Donation and Receipt in Australia: Views on the Meanings of Embryos and Kinship Relations" 2019 New Genetics and Society 1-17
Blyth 2012 Reproductive Biomedicine Online
Blyth E "Genes R Us? Making Sense of Genetic and Non-Genetic Kinship Relationships Following Anonymous Donor Insemination" 2012 Reproductive Biomedicine Online 719-726
Clark 2012 Ga J Int'l & Comp L
Clark B "A Balancing Act? The Rights of Donor-Conceived Children to Know their Biological Origins" 2012 Ga J Int'l & Comp L 621-661
Clark "Ethical Implications of Embryo Adoption"
Clark P "Ethical Implications of Embryo Adoption" in Atwood CS and Meethal SV (eds) Pluripotent Stem Cell Biology: Advances in Mechanisms, Methods and Models (IntechOpen Rijeka 2014) 213-242
Daniels, Grace and Gillett 2011 Human Reproduction
Daniels K, Grace V and Gillett W "Factors Associated with Parents' Decisions to Tell Their Adult Offspring About the Offspring's Donor Conception" 2011 Human Reproduction 2783-2790
Écra et al 2017 Open Journal of Obstetrics and Gynaecology
Écra A et al 2017 "Factors Influencing the Acceptance of the Gametes Donation in Côte d'Ivoire/West Africa" 2017 Open Journal of Obstetrics and Gynaecology 600-607
Geber, Kyriakakis and O'Byrne 2013 MJIL
Geber P, Kyriakakis J and O'Byrne K "General Comment 16 on State Obligations Regarding the Impact of the Business Sector on Children's Rights: What is Its Standing, Meaning and Effect?" 2013 MJIL1-36
Gerrits and Shaw 2010 F, V & V in ObGyn
Gerrits T and Shaw M "Biomedical Infertility Care in Sub-Saharan Africa: A Social Science Review of Current Practices, Experiences and View Points" 2010 F, V & V in ObGyn 194-207
Gibbs and Scheman 2013 New Zealand Journal of Social Sciences Online
Gibbs A and Scheman R "Pathways to Parenting in New Zealand: Issues in Law, Policy and Practice" 2013 New Zealand Journal of Social Sciences Online 13-26
Goedeke Embryo Donation in New Zealand
Goedeke S Understandings and Experiences of Embryo Donation in New Zealand: A Discursive Analysis (PhD-thesis Auckland University of Technology 2014)
Goedeke and Daniels 2017 Bioethics Beyond Altruism
Goedeke S and Daniels K "Towards an Understanding of Embryo Donation in New Zealand: The Views of Donors and Recipients" 2017 Bioethics Beyond Altruism 115-139
Goedeke and Daniels 2017 Qualitative Health Research
Goedeke S and Daniels K "The Discourse of Gifting in Embryo Donation: The Understandings of Donors, Recipients, and Counselors" 2017 Qualitative Health Research 1402-1411
Goedeke and Daniels 2018 Journal of Reproductive and Infant Psychology
Goedeke S and Daniels K "We Wanted to Choose Us: How Embryo Donors Choose Recipients for Their Surplus Embryos" 2018 Journal of Reproductive and Infant Psychology 1-12
Goedeke and Payne 2010 Human Reproduction
Goedeke S and Payne D "A Qualitative Study of New Zealand Fertility Counsellors' Roles and Practices Regarding Embryo Donation" 2010 Human Reproduction 2821-2828
Goedeke et al 2015 Human Reproduction
Goedeke S et al "Building Extended Families Through Embryo Donation: The Experiences of Donors and Recipients" 2015 Human Reproduction 2340-2350
Gottlieb, Lalos and Lindblad 2020 Human Reproduction
Gottlieb C, Lalos O and Lindblad F "Disclosure of Donor Insemination to the Child: The Impact of Swedish Legislation on Couples' Attitudes" 2000 Human Reproduction 2052-2056
Graham 2022 Reproductive BioMedicine and Society Online
Graham S "The Opposite of a Step Parent: The Genetics without Any of the Emotion: 'Sperm Donors' Reflections on Identity-Release Donation and Relatedness" 2022 Reproductive BioMedicine and Society Online 192-203
Hammarberg, Johnson and Petrillo 2011 Journal of Reproductive and Infant Psychology
Hammarberg K, Johnson and Petrillo T "Gamete and Embryo Donation and Surrogacy in Australia: The Social Context and Regulatory Framework" 2011 Journal of Reproductive and Infant Psychology 176-183
Hill 2010 Journals of Politics
Hill DW "Estimating the Effects of Human Rights Treaties on State Behavior" 2010 Journals of Politics 1161-1174
Johnson 2014 Indian Journal of Medical Research
Johnson L "Regulation of Assisted Reproductive Treatment (ART) in Australia and Current Ethical Issues" 2014 Indian Journal of Medical Research 9-12
Millbank et al 2017 J L & Med
Millbank J et al "Embryo Donation for Reproductive Use in Australia" 2017 J L & Med 789-810
Mohaparea 2015 Loyola University International Law Review
Mohaparea S "Adopting an International Convention on Surrogacy: A Lesson from Intercountry Adoption" 2015 Loyola University International Law Review 25-55
NHMRC Ethical Guidelines
Australian Government National Health and Medical Research Council (NHMRC) Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research (National Health and Medical Research Council Canberra 2017)
Neumayer 2005 Journal of Conflict Resolution
Neumayer E "Do International Human Rights Treaties Improve Respect for Human Rights?" 2005 Journal of Conflict Resolution 925-953
New Zealand Parliament Government Response
New Zealand Parliament Government Response to Law Commission Report on New Issues in Legal Parenthood (New Zealand Government Wellington 2006)
Nichol 2016 Michigan State Law Review
Nichol B "A Child without a Country: Dissolving the Statelessness of Children Born through Surrogacy" 2016 Michigan State Law Review 907-945
Page Artificial Womb Technology
Page C Artificial Womb Technology and the Safeguarding of Children's Rights Through an Analysis of the Right to Identity (LLM-dissertation Leiden University 2017)
Pryce 2016 Ind J Global Legal Studies
Pryce C "Surrogacy and Citizenship: A Conjunctive Solution to a Global Problem" 2016 Ind J Global Legal Studies 925-952
RTAC Code of Practice for Assisted Reproductive Technology Units
Reproductive Technology Accreditation Committee of the Fertility Society of Australia Code of Practice for Assisted Reproductive Technology Units (Fertility Society of Australia Victoria 2017)
Setenane Assessing the Ethico-Cultural Implications
Setenane A Assessing the Ethico-Cultural Implications of Invitro Fertilization (IVF) within the Rural Zulu Communities in South Africa (MA in Ethics thesis University of the KwaZulu-Natal 2020)
Smith 2020 Cath U L Rev
Smith A "Meaning, Biology, and Identity: The Rights of Children" 2020 Cath U L Rev 371-400
Teman and Berend 2020 Journal of Family Issues
Teman E and Berend Z "Surrogacy as a Family Project: How Surrogates Articulate Familial Identity and Belonging" 2020 Journal of Family Issues 1-23
Thaldar and Shozi 2022 SAMJ
Thaldar D and Shozi B "Is Open-Identity Gamete Donation Lawful in South Africa?" 2022 SAMJ 409-412
Wilsdon 2019 J L & Med
Wilsdon L "Embryo Donation in New Zealand: Considerations of the Health and Wellbeing of Children" 2019 J L & Med 691-701
Zegers-Hochschild et al 2009 Fertility and Sterility
Zegers-Hochschild F et al "International Committee for Monitoring Assisted Reproductive Technology (ICMART) and the World Health Organization (WHO) Revised Glossary of ART Terminology, 2009" 2009 Fertility and Sterility 1520-1524
Case law
AB v Minister of Social Development 2017 3 SA 570 (CC)
Legislation
Australia
Assisted Reproductive Technology Act, 2007 (New South Wales)
Assisted Reproductive Treatment Act, 1988
Assisted Reproductive Treatment Act, 2008 (Victoria)
Assisted Reproductive Treatment Act 76 of 2008
Human Reproductive Technology Act, 1991 (Western Australia)
Reproductive Technology Clinical Practices Act, 1988 (South Australia)
New Zealand
Human Assisted Reproductive Technology Act, 2004
South Africa
Births and Deaths Registration Act 51 of 1992
Children's Act 38 of 2005
Constitution of the Republic of South Africa, 1996
National Health Act 61 of 2003
International instruments
African Charter on the Rights and Welfare of the Child (1990)
UN Convention on the Rights of the Child (1989)
Government publications
GN 1165 in GG 40312 of 30 September 2016
GN 251 in GG 44321 of 25 March 2021
Internet sources
Adams et al 2019 https://www.news24.com/parent/fertility/ trying_to_conceive/experts-answer-your-questions-on-donor-conception-and-ivf-20190625
Adams D et al 2019 Experts Answer Your Questions on Donor Conception and IVF https://www.news24.com/parent/fertility/trying_to_conceive/ experts-answer-your-questions-on-donor-conception-and-ivf-20190625 accessed 28 October 2022
Allan 2019 https://www.health.wa.gov.au/~/media/Files/Corporate/Reports-and-publications/HRT/Review-of-HRT-and-Surrogacy-Act-Part-2.pdf
Allan S 2019 The Review of the Western Australian Human Reproductive Technology Act 1991 and the Surrogacy Act 2008 (Report Part 2) https://www.health.wa.gov.au/~/media/Files/Corporate/Reports-and-publications/HRT/Review-of-HRT-and-Surrogacy-Act-Part-2.pdf accessed 20 January 2024
Broughton 2018 https://www.timeslive.co.za/sunday-times/news/2018-08-11-let-children-know-their-genetic-origins-say---child-law-experts
Broughton T 2018 "Let Children Know Their Genetic Origins, Says Child Law Expert" https://www.timeslive.co.za/sunday-times/news/2018-08-11-let-children-know-their-genetic-origins-say---child-law-experts accessed 28 October 2022
Childwatch International Research Network 2013 https://www.childwatch.
uio.no/news/2013/international-surrogacy%3A-a-new-field-of-investigat.html
Childwatch International Research Network 2013 Call for Action: International Surrogacy: A New Field of Investigation for International Social Service Network https://www.childwatch.uio.no/news/2013/international-surrogacy%3A-a-new-field-of-investigat.html accessed 28 October 2022
Daniels 2008 https://www.researchgate.net/publication/228349203_ Guidelines_for_embryo_donation_for_reproductive_purposes_in_New_Zealand_A_childfamily_approach
Daniels K 2008 Guidelines for Embryo Donation for Reproductive Purposes in New Zealand: A Child/Family Approach https://www.researchgate.net/ publication/228349203_Guidelines_for_embryo_donation_for_reproductive_purposes_in_New_Zealand_A_childfamily_approach accessed 20 January 2024
DHA date unknown http://www.dha.gov.za/index.php/civic-services/birth-certificates
Department of Home Affairs date unknown Birth Certificates http://www.dha.gov.za/index.php/civic-services/birth-certificates accessed 17 October 2022
Embryo Donation International date unknown https://www.embryodonation.
com/donate-your-embryos.php
Embryo Donation International date unknown Donate Embryos https://www.embryodonation.com/donate-your-embryos.php accessed 28 October 2022
Embryo Donation International date unknown https://www.embryodonation
.com/embryo-recipient-idp.php
Embryo Donation International date unknown Embryo Recipient Identity Disclosure Program (IDP) https://www.embryodonation.com/embryo-recipient-idp.php accessed 28 October 2022
Embryo Donation International 2014 https://www.embryodonation.com/ downloads/Embryo%20Donor-Conceived%20Offspring%20Birth%20
Registration%20Form.pdf
Embryo Donation International 2014 Embryo Donor-Conceived Offspring Birth Registration Form https://www.embryodonation.com/downloads/ Embryo%20Donor-Conceived%20Offspring%20Birth%20Registration% 20Form.pdf accessed 28 October 2022
Fertility Society of Australia date unknown https://www.fertilitysociety. com.au/donor-programme-australia-new-zealand/#embryo-donation
Fertility Society of Australia date unknown Donor Programme https://www.fertilitysociety.com.au/donor-programme-australia-new-zealand/#embryo-donation accessed 20 October 2022
Goedeke date unknown https://www.fertilitynz.org.nz/information/donation-and-other-options/embryo-donation/
Goedeke S date unknown Embryo Donation https://www.fertilitynz.org.nz/ information/donation-and-other-options/embryo-donation/ accessed 28 October 2022
HCCH date unknown https://www.hcch.net/en/projects/legislative-projects/parentage-surrogacy
Hague Conference on Private International Law date unknown The Parentage/Surrogacy Project https://www.hcch.net/en/projects/legislative-projects/parentage-surrogacy accessed 17 October 2022
ISS date unknown https://www.iss-ssi.org/index.php/en/
International Social Service date unknown The International Social Service https://www.iss-ssi.org/index.php/en/ accessed 22 October 2022
ISS date unknown https://www.iss-ssi.org/index.php/en/what-we-do-en/surrogacy
International Social Service date unknown International Social Service Works to Improve Protections for Children Born through Surrogacy https://www.iss-ssi.org/index.php/en/what-we-do-en/surrogacy accessed 22 October 2022
Jolly 2017 https://www.theguardian.com/lifeandstyle/2017/jan/21/donor-siblings-do-ties-of-blood-matter
Jolly A 2017 Donor Siblings: Do the Ties of Blood Matter? https://www.theguardian.com/lifeandstyle/2017/jan/21/donor-siblings-do-ties-of-blood-matter accessed 28 October 2022
McCombs and Gonzalez 2007 https://scm.oas.org/pdfs/2007/cp19277.pDF
McCombs T and Gonzalez JS 2007 Right to Identity https://scm.oas.org/pdfs/2007/cp19277.pDF accessed 17 January 2024
Mpedi 2023 https://www.dailymaverick.co.za/opinionista/2023-04-23-south-africa-needs-legislation-to-regulate-and-formalise-embryo-adoption/
Mpedi L 2023 South Africa Needs Legislation to Regulate and Formalise Embryo Adoption https://www.dailymaverick.co.za/opinionista/2023-04-23-south-africa-needs-legislation-to-regulate-and-formalise-embryo-adoption/ accessed 11 November 2023
Mundy 2013 https://newrepublic.com/article/112375/birth-certificates-age-adoption-and-egg-donation
Mundy L 2013 The Strange History of the Birth Certificate https://newrepublic.com/article/112375/birth-certificates-age-adoption-and-egg-donation accessed 28 October 2022
NSW Health 2022 https://www.health.nsw.gov.au/art/Pages/the-central-register.aspx
NSW Health 2022 The Central Register https://www.health.nsw.gov.au/art/ Pages/the-central-register.aspx accessed 25 October 2023
Power 2017 https://www.news24.com/parent/Fertility/Trying_to_conceive/
why-donor-conceived-children-need-to-know-their-origins-20170328
Power J 2017 Why Donor-Conceived Children Need to Know Their Origins https://www.news24.com/parent/Fertility/Trying_to_conceive/why-donor-conceived-children-need-to-know-their-origins-20170328 accessed 28 October 2022
Shepherd 2023 https://www.theguardian.com/science/2023/feb/08/urgent-calls-for-australia-wide-register-of-sperm-donations-amid-concerns-about-prolific-donors
Shepherd T 2023 Urgent Calls for Australia-Wide Register of Sperm Donations Amid Concerns about ‘Prolific’ Donors https://www.theguardian.com/science/2023/feb/08/urgent-calls-for-australia-wide-register-of-sperm-donations-amid-concerns-about-prolific-donors accessed 23 October 2023
Tucker date unknown https://pved.org/thelegalitiesofivf.php
Tucker C date unknown The Legalities of IVF Abroad https://pved.org/thelegalitiesofivf.php accessed 28 October 2022
UN Enable date unknown https://www.un.org/esa/socdev/enable/convin
fofaq.htm
UN Enable date unknown Frequently Asked Questions Regarding the Convention on the Rights of Persons with Disabilities https://www.un.org/ esa/socdev/enable/convinfofaq.htm accessed 28 October 2022
UNHR Office of the High Commissioner 2021 https://www.ohchr.org/EN/HRBodies/CRC/Pages/Discussion2020.aspx
UNHR Office of the High Commissioner 2021 Day of General Discussion: Children's Rights and Alternative Care https://www.ohchr.org/EN/HR Bodies/CRC/Pages/Discussion2020.aspx accessed 28 October 2022
VARTA date unknown https://www.varta.org.au/after-donor-conception/i-am-parent-donor-conceived-person
VARTA date unknown I am a Parent of a Donor-Conceived Person https://www.varta.org.au/after-donor-conception/i-am-parent-donor-conceived-person accessed 28 October 2022
Venkov 2018 https://www.thetornidentity.org/2018/12/13/children-right-legal-identity
Venkov J 2018 The Right Start: Children and the Right to a Legal Identity https://www.thetornidentity.org/2018/12/13/children-right-legal-identity accessed 11 October 2022
List of Abbreviations
ACART |
Advisory Committee on Assisted |
---|---|
ARCWC |
African Charter on the Rights and Welfare of the Child |
ART |
Assisted Reproductive Technology |
Cath U L Rev |
Catholic University Law Review |
CRC |
Convention on the Rights of the Child |
DHA |
Department of Home Affairs |
F, V & V in ObGyn |
Facts, Views and Vision in ObGyn |
HART Act |
Human Assisted Reproductive Technology Act, 2004 |
HCCH |
Hague Conference on Private International Law |
Ind J Global Legal Studies |
Indiana Journal of Global Legal Studies |
ISS |
International Social Service |
J L & Med |
Journal of Law and Medicine |
MJIL |
Melbourne Journal of International Law |
---|---|
NGO |
non-governmental organisation |
NHA |
National Health Act 61 of 2003 |
NHMRC |
National Health and Medical Research Council |
RTAC |
Reproductive Technology Accreditation Committee |
SAMJ |
South African Medical Journal |
UN |
United Nations |
UNHR |
United Nations Human Rights |
VARTA |
Victorian Assisted Reproductive Treatment Authority |