CHAPTER 1 - Introduction
On 16 June 2010, the Senate referred the following matter to the Legal
and Constitutional Affairs References Committee (committee) for inquiry and
report by 30 November 2010:
The past and present practices of donor conception in Australia,
with particular reference to:
conception regulation and legislation across federal and state jurisdictions;
(b) the conduct of clinics and medical services,
(i) payments for donors;
(ii) management of data
relating to donor conception; and
(iii) provision of
appropriate counselling and support services;
number of offspring born from each donor with reference to the risk of
consanguine relationships; and
(d) the rights of donor conceived individuals.
The inquiry lapsed on 26 September 2010, the eve of the 43rd
Parliament and, on 30 September 2010, the Senate re-referred the
inquiry to the committee with a reporting date of 24 November 2010.
The Senate subsequently agreed to extend this reporting date to 9 February 2011.
The term 'donor conception' refers to reproductive techniques which
involve the use of donated gametes and embryos. 'Gamete' is the term used to
refer to eggs (also known as oocytes) and sperm. People that have been
conceived by donor conception are commonly referred to as being 'donor
conceived'. Donor conception relates to a range of procedures such as in‑vitro
fertilisation that are often collectively referred to as assisted reproductive
Most often, donor conception occurs in formal clinical settings. However,
some parties enter into private donor conception arrangements outside clinics.
In private arrangements, parties, particularly single women and lesbians, may choose
to conceive using sperm from a donor that they know personally, or they may
advertise for a donor. It is not uncommon for sperm donors who identify as gay to
donate to lesbian couples in private arrangements.
Numbers of donor conceived people
It is difficult to estimate, and therefore, accurately know the number
of donor conceived people in Australia. While the use of donor sperm to achieve
pregnancies has existed for a long time, in the 1950s its use became better
known, and significantly increased during the 1970s and 1980s.
ART clinics in Australia and New Zealand are required to report data to
the Australian Institute of Health and Welfare's National Perinatal Statistics
Unit, which produces an annual report. However, these statistics do not include
births resulting from private practices or private arrangements. They also include figures for New Zealand,
which are estimated to be about ten per cent of all live births.
The numbers of donor-conceived children reported to the National
Perinatal Statistics Unit from 2002–2008 in Australia and New
Zealand are as follows:
Live births from egg/embryo recipient cycles
Live births from donor insemination cycles
However, the figures from 2002–2008 are not necessarily representative
of the entire period covering the 1970s until today. For example, in 2000, it was
reported that there were 297 viable pregnancies using donor sperm,
and 91 viable pregnancies using donor oocytes and donor embryos.
Between 1993 and 2009, 1,004 children were born as a result of procedures
undertaken by ART clinics in Western Australia
and there are currently more than 4,500 children in Victoria born as a result
of donated gametes and embryos.
If there has been an average of 600 donor conceived people born each
year since the 1970s, there would be about 20,000 donor conceived people in
However, some estimates suggest that there are in excess of 60,000 donor
conceived individuals in Australia.
Access to ART procedures
It does not appear that statistics are collated on the types of families
that access ART procedures in Australia; nor would it appear that statistics
about a particular mother's status are reported to the Australian Institute of
Health and Welfare's National Perinatal Statistics Unit. For example, a
breakdown between percentages of infertile heterosexual couples, single women
and lesbian couples accessing ART through clinics is not available. This issue
is further complicated by the fact that some heterosexual couples as well as, more
commonly, single women and lesbian couples utilise private donor conception arrangements
and are therefore not recorded in the statistics collected by clinics.
In Western Australia, between 1993–2009, of the 338 donor conceived
children reported by clinics where status could be identified, 115 babies were
born to single women.
No figures were recorded for lesbian couples. In one clinic in Victoria, it is
estimated that 60 per cent of clients are currently heterosexual couples, with
about 20 per cent being single women and 20 per cent being same-sex couples,
whereas another clinic has about a 33 per cent split for heterosexual couples,
lesbian couples and single women.
Prior to 2000, some states had legislated to require that a woman be
either married and living with her husband on a genuine domestic basis or be
living with a man in a de facto relationship in order to access fertility treatment,
including donor conception.
However, in McBain v the State of Victoria and Ors,
the Federal Court of Australia held that state Acts which restricted women's access
to fertility treatment on the basis of marital status were invalid.
The consequence of this decision was that it opened up access to fertility
treatment to both single women and same-sex couples.
Commonwealth funding arrangements for ART procedures
The Commonwealth provides funding for ART processes, including donor
conception, through the Medicare scheme. There are ten items listed on the
Medicare Benefits Schedule relating to ART, attracting a 75 per cent or 85 per
cent rebate. These include such services as:
- superovulated treatment cycle proceeding to oocyte retrieval;
- ovulation monitoring services for assisted insemination; and
- preparation of semen for the purposes of assisted insemination.
Additional funding for ART procedures is provided through the Extended
Medicare Safety Net (EMSN), which provides an additional rebate for Australian
families and single people who incur out-of-pocket costs for out-of-hospital
services. Once the relevant annual threshold of out-of-pocket costs has been
met, Medicare covers 80 per cent of any future out-of-pocket costs for
out-of-hospital services for the remainder of the calendar year. However, on 1
January 2010, an upper limit was placed on the benefits that can be paid under
the EMSN for ART procedures.
Conduct of the inquiry
The committee advertised the inquiry in The Australian newspaper fortnightly
from 30 June 2010 to 25 August 2010, and from 14 October 2010 to
10 November 2010, and invited submissions by 30 July 2010. Submissions
continued to be accepted until 7 February 2011. The committee also wrote to a
number of organisations and individuals inviting submissions. Details of the
inquiry and associated documents were placed on the committee's website.
The committee received 162 submissions from various individuals and
organisations which are listed at Appendix 3. Due to the nature of some of the
personal stories and experiences included in certain submissions, the committee
determined that relevant submissions would be published with the name of the
submitter(s) withheld and/or with particular information removed. A number of
submissions were also accepted as confidential and were not published. All
public submissions were published on the committee's website.
The committee held public hearings in Canberra on 29 October 2010, in Sydney
on 2 November 2010 and in Melbourne on 3 November 2010. Witnesses who appeared
at the hearings are listed at Appendix 4. The Hansard transcript is
available on the committee's website at: http://aph.gov.au/hansard/.
Scope of the inquiry
The terms of reference for the inquiry relate to donor conception
regulation and legislation across federal and state jurisdictions. Early donor
conception practices were not governed by any specific legislative regime, but
were essentially a private arrangement conducted between the clinic, donors and
Anonymity of donors was generally a requirement for the participation of both
donors and recipient parents.
As a result, many parents were encouraged not to advise their children that
they were donor conceived, and it appears that many donor conceived people are
not aware that they are donor conceived.
Today, there are only four states in Australia that regulate donor
conception: Victoria, South Australia, Western Australia and New South Wales.
Much of the evidence and discussion in this report is centred on the
experiences of donor conceived people, particularly those from the states with
legislation regulating donor conception practices. This may reflect the
coverage that the issue of donor conception has had in those states. As a
result, this report is not a comprehensive examination of all issues relating
to donor conception and ART practices in Australia.
On the whole, the regulation of donor conception in Australia does not appear
to have accorded donor conceived people the right to information and access to
records that may assist in improving their sense of identity. The committee is
hopeful that its report and recommendations will assist in raising awareness in
all states and territories about the issue of donor conception, particularly in
those jurisdictions that do not have legislation regulating donor conception
Structure of the report
The committee's report is structured in the following way:
- Chapter 2 examines the regulation of donor conception practices
in Australia, and considers concerns raised during the inquiry in relation to regulation
of these practices;
- Chapter 3 examines issues in relation to the management of data
relating to donor conception and the need for a national register;
- Chapter 4 discusses payments for donors, and the provision of
appropriate counselling and support services;
- Chapter 5 considers the risk of consanguinity and limits on
Chapter 6 considers the rights of donor conceived individuals;
- Chapter 7 sets out the committee view and recommendations.
Note on references
Submission references in this report are to individual submissions as
received by the committee, not to a bound volume. References to the committee Hansard
are to the proof Hansard. Page numbers may vary between the proof
and the official Hansard transcripts.
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