Assisted Reproductive Treatment Amendment Bill 2015

Ms Patten (Northern Metropolitan) — I would like to add a small contribution to the debate on the Assisted Reproductive Treatment Amendment Bill 2015. As others have said, this bill will enable donor-conceived persons born as a result of pre-1988 treatment procedures, or their descendants, to obtain information regarding their donors from the Victorian Assisted Reproductive Treatment Authority (VARTA), and that is whether the donor consents or does not. It allows for the making of protection orders by the Magistrates Court to ensure provision of information and establishes a scheme for contact preferences. It also creates a number of offences relating to breaches of those contact preferences.

From my reading on this, the bill effectively reflects a lot of the submissions that were made to the Law Reform Committee — some 80 submissions — during that committee’s inquiry into access by donor-conceived people to information about donors. As many of the other speakers have said, this has been a very interesting debate for many of us who are weighing up the rights of those donor-conceived adults, as they now are, versus the rights of the donors who at that time felt that they were doing this anonymously and probably for all the right reasons. But in those days it was about being anonymous. In those days the doctors, the professionals, were saying, ‘Don’t tell the children that they are donor conceived. Keep that a secret’. We have moved on and we have changed remarkably since then. We saw with the adoption debate just last year how far we have come in understanding, as Mr Finn put it, the importance of where we have come from and how that helps us go forward.

As many members did, I received many really thoughtful personal emails and phone calls from people who were donor conceived during this time, and I want to read one. It states:

I found out I was donor conceived this year in August after my mother tearfully confessed this to me because of the law change in June.
…

Not knowing and being lied to about who I am as a person has been hard but what has been even harder is that because of the current laws I may never know the whole truth. My experiences to date trying to find out my genetic and medical history have been frustrating and deeply hurtful. Yet I will keep searching, asking and begging for information because I need to know. I should not be denied information about who I am.

She did not have a choice to not know who that donor was at that time. The concern must be weighed against the current system where unexpected contact may happen these days without counselling. Certainly, as Ms Wooldridge mentioned and I believe Dr Carling-Jenkins mentioned, social media and new technologies are having an enormous effect on how we get information. So having a framework in place will at least allow for an initial contact and some counselling, and we have seen the evolvement of this issue through various changes to assisted reproductive treatment legislation over the years. Ms Pennicuik and Ms Wooldridge certainly highlighted those historical movements and the evolvement of this part.

I do believe the concerns around privacy and anonymity are important. But as we saw with the Castan Centre for Human Rights Law’s submission — I know that it put in a submission earlier but it also put a submission into the Scrutiny of Acts and Regulations Committee — it noted very strongly the importance of placing the rights of the child as the primary consideration. I agree with this, and as a result I am reluctantly supporting this legislation. But for all of the positives, there are people who oppose this bill quite vehemently, and I think they are very justified. Again, in previous contributions we have heard about those concerns.
I just want to go back to one other woman who wrote to me. She was donor conceived prior to 1988 and she had had contact with her donor. She knew of a half-sister. That half-sister had a very rare form of a very aggressive breast cancer and she knew about this. She contacted the clinic where she had been donor conceived to pass on that information and to ask that clinic whether it would pass that information on to her other half-siblings. The clinic did not consider that that information was important at the time and refused to pass it on, so I think this bill will go a long way to assisting in those areas.

Donors have expressed concern about being contacted or having their adult children contacted despite having those non-contact preferences placed there. I understand that concern and I understand that fear. The New South Wales Law Reform Commission produced a Review of the Adoption Information Act 1990 and it notes that compliance with contact vetoes was ‘remarkably high’. As we have heard from other contributions, it would be highly unlikely for a donor-conceived person to want to breach that preference and vice versa — for a donor to want to breach the preference of the donor-conceived person.

But these concerns are valid. Again, weighing this up between the rights of the child and the rights of the donor, I feel that the rights of the child do take precedence here.

We also understand that there is privacy and there is anonymity. This bill grants that those donors will lose that right to anonymity, but they do not lose the right to privacy, and I think we should separate the two. It is important that we understand that. Yes, I understand the retrospective nature, I understand the pain of certainly the people who wrote to me who feel that we are breaching that anonymity that they felt they had when they felt they were doing the right thing. But we are not breaching their privacy, and I think that is where I was able to balance my decisions in here.

I just want to raise one of the very thoughtful emails from one of the donors at that time, who said he was:
… promised 100 per cent donor anonymity and we were assured that any offspring would not be told of their conception details by their parents —

because that was considered the right thing to do: ‘Don’t tell them. Don’t tell them that they’re donor conceived’. He continued:
During a 1993–94 counselling session I was told that for future sperm donations anonymity was not 100 per cent assured, I immediately withdrew from the program. At that point I was informed that I had assisted with the birth of five children … Five years ago, I was contacted by one of my procedure’s offspring who was curious about his heritage. Although I did not wish to be identified, I happily supplied him with more information than he wanted to satisfy his curiosity …

This included explanations about my motivation to assist his parents, my scholastic, occupation and life achievements, my hobbies, the names and places of birth of my ancestors. I also supplied photographs of myself, parents, aunt and uncle taken between the ages of 18 and 25 … so he could determine any similarities. I have also placed all of this information on the BDM — births, deaths and marriages —
and VARTA’s voluntary register. I have had no further requests for contact in the last five years, so I assume this information was sufficient.

This was a very generous person and a very thoughtful person. He was happy to provide a great deal of information, but he did not want to provide his name and he wanted to maintain his anonymity.

So some donor-conceived individuals have been adamant that that retrospectivity is fair and reasonable. One wrote:
I do not wish to invade the privacy of my donor and intrude on his life. Like other examples of retrospective legislation in Victoria, I do not see this as a big crisis which is going to ruin the lives of a group of people; in this case ‘anonymous’ donors. I merely want to be treated in the same manner as other Victorians my age … who enjoy the benefits of equitable legislation on the matter.
I am not sure what would happen if that donor-conceived person and that same donor were put into the same room and how they would argue that out about, as Mr Finn said, whose rights trump in that room. I think it would be a very interesting conversation, and it has given me much reason to think and reflect on this. But in thinking of all of that, I do think that these changes seek to provide some certainty, but that is because we lacked that certainty when this legislation was introduced, when we had this enormous new technology and, I guess, a brave new world back then in the 1980s. It is so interesting to think that that was nearly 40 years ago.

In concluding, I would like to thank all of the organisations that wrote to me and especially the individuals who wrote to me and to further emphasise, as I have heard from my colleagues here, that it has not been easy to decide about the question of those competing rights. I regret that unfairness, that those donors were promised the anonymity that I do not think was probably right to have been promised at that time. I am saddened about this, but I do think it is important for those children to have the same rights as other children in knowing where they came from.

My niece was donor conceived. She is seven. I was with my family on the weekend, and I was hearing the story. She is seven; she will be eight next month. She had never really asked about it, and she asked my sister and my sister’s partner did she have a dad, and they responded, ‘Yes, of course you do’, and she said, ‘Well, who is it?’, and they told her. They had been working up to this day for a number of years, waiting for the day that my niece would ask these questions. They said, ‘So what else would you like to know?’, and she said, ‘Can I go and watch television?’. I think kids, given that opportunity at that young age, will take it in bit by bit. She will ask more questions in the future. She will have the opportunity to have contact with the donor. She may even have a relationship with the donor and with other siblings that she may come to know.

This bill highlights the importance of clarity and support throughout the law-making process. It was unfair back in 1988, and this does rectify that for those people who were donor conceived. I fully acknowledge the fear and the pain of some of the donors, who rightfully thought that their anonymity would be respected by law right to the very end. I am sorry that that is not so, but I do think, in weighing this up, the rights of those donor-conceived children outweigh that right to anonymity.