Conception Using a Donor
There are many circumstances in which an individual or a couple intending to be the parents may require a donor egg or sperm or both, in order to conceive a child. For example, where a woman cannot use her own eggs to conceive a child, she may seek an egg donor; the donor egg is then fertilised and transferred to the woman to carry. This is carried out with the intention that she be a parent of the child regardless of not sharing its DNA. Additionally, there are two forms of surrogacy requiring either a sperm donor or an egg donor:
• Traditional surrogacy, whereby the surrogate mother undergoes donor insemination treatment using her own eggs. This form of surrogacy does not occur via IVF clinics in Australia, as a matter of policy. This does not prevent individuals from conducting private artificial insemination outside of IVF clinics with the intention of the woman acting as a surrogate.
• Gestational surrogacy whereby the donor egg is harvested from a third person and fertilised using a sperm donation from one of the intending parents. The embryo is then implanted in the surrogate mother, and the child will not have her DNA. There are strict conditions imposed by Australian IVF clinics regarding the circumstances of a surrogacy arrangement.
The law in Australia states that where sperm is donated through an IVF clinic, the donor has no legal obligations or rights to a child born as a result of donation. When an egg donor is used the conception needs to be conducted via an IVF clinic. Likewise, an egg donor in Australia will never have legal obligations or rights to a child born via their donation.
It is sometimes advised, by others in the legal field, in the case of a private donation arrangement, that the donor and the recipient have a written donor agreement. This is when a known male donor agrees to donate sperm to allow artificial conception of a child outside of an IVF clinic setting. This agreement may set out their intentions with regard to the conception. Boers Associates are experienced in advising parties regarding donor agreements and their rights and obligations. The best time to seek legal advice regarding a donation arrangement is in the planning stages, before donation or conception occur.