Retrospective Legislation and Donor Conceived People

The danger with retrospective legislation, which some seek to identify sperm donors, lies in its potential for injustice.

Hard cases make bad law. This is as true of the common law and acts passed by Parliament as it is of the moral law. That is why whatever sympathies we have for donor-conceived adult Kimberley Springfield’s desire to contact her sperm donor, overhauling the legal framework governing assisted reproductive technology in the state and across the nation may not be justified.

What is 26-year-old Springfield, whose case is before the Victorian Civil and Administrative Tribunal, seeking? She wants the Registry of Births, Deaths and Marriages – which manages the mandatory and voluntary registers containing information about Victorian donors, donor-conceived offspring and their relatives – to identify her donor by seeking information from the clinic where he gave sperm under conditions of anonymity.

She then wants it to use that information to identify his whereabouts and to write to him advocating the purpose and benefit of the voluntary register.

As Rachel Ellyard, representing the registrar, has made clear, this request goes well beyond what is authorised by Victorian law. “This isn’t about the rights and wrongs of why she would want to do that, but it’s a request that goes far beyond the ART [Assisted Reproductive Treatment] Act.”

The problem for Springfield is that she was conceived before 1988. She has put information on the voluntary register and hoped her donor would do the same. But he hasn’t and she has no way of knowing why. Is it because he doesn’t want to, or doesn’t know the register exists?

This situation differs from that faced by children conceived after 1988 but before 1997, whose donors are informed when they use the voluntary register to request information about them (a request the donor can refuse).

Children conceived after 1997 have a right to identifying information about their donor once they turn 18.

It would be nice to equalise the entitlements of the pre~~1988 and pre~~1997 groups. But to do this, we would have to violate the legal assurances that they would remain anonymous that were given to men who donated before 1988.

This promise should never have been given. Thank goodness we have changed the law to ensure only donors willing to be identified are recruited.

The question is whether the needs of donor-conceived children such as Springfield are so compelling they justify enacting retrospective legislation.

Retrospective legislation is a big no-no. The choices citizens make are based on rules in place at the time. To alter them and force people to live with the consequences of a decision they can’t change and to which they did not consent is unjust. Worse, it undermines the trust between citizens and governments essential for a functioning democracy.

The unravelling of such trust can cause panic. Sperm donors, for instance, might start worrying they could be landed with financial responsibility for a donor-conceived child. After all, they might think, if they welshed on one promise, why not another?

The potential for injustice, distrust and panic is why utterly compelling reasons for retrospective legislation are required. I remain unconvinced such reasons exist to alter the recently updated Assisted Reproductive Treatment Act 2008 again.

Springfield says that without knowledge of her biological father and his genetic history she has no way of finding her “place of belonging in the world”.

Sorry? Over most of our history, humans have embarked on the quest to discover who they are, where they fit and why they matter without sure knowledge of the genetic or social history of their male progenitor. This is for the simple reason that the identity of the biological father could not be definitively known. The suggestion that it is impossible for an individual to flourish or live a meaningful life without this information seems like so much hyperbole.

Evidence also suggests it is a mistake to give too much weight to the contribution one parent’s genetics make to the health, identity and life chances of his biological child.

It turns out that nature and nurture don’t just determine our opportunities but also expression of our genes, which the science of epigenetics has shown can be turned on and off by our social environment. The advent of new genetic tests that can scan our own DNA for hundreds of conditions is fast making knowledge of both parents’ health history irrelevant to our own capacity to understand and care for our health.

How many are like Springfield, born before 1988 and convinced they cannot flourish until they know their biological father? Research does not tell us. Ideally, however many there are, Victoria would have legislation that supports the particular requirements of all donor-conceived people to rest easily with their conception story.

The choices we face are not ideal. I’d support a compromise that saw every Victorian household sent a letter about the voluntary donor register, so we had more confidence that those not on the register have refrained by choice.

But further trashing the trust between citizens and governments by enacting retrospective legislation (we did this years ago with adoption) seems neither wise nor fair.

Publication history

Why trust outweighs knowledge  The Age