The role of the sperm or egg donor in In Vitro Fertilisation (IVF) procedures is a vital part of assisted reproductive arrangements. However, in Victoria a donor may withdraw their consent at any stage during the process of IVF before transfer, without recourse as provided by the Assisted Reproductive Treatment Act (2008) (Vic). This has led to the destruction of embryos that have already been fertilised. In such cases, commissioning couples are unable to proceed with the procedure and apart from having to source a new donor, may suffer the loss of a potential pregnancy which can cause significant emotional distress.

The legal background

The primary legislation that regulates the provision of assisted reproductive treatment in Victoria, such as IVF, is the Assisted Reproductive Treatment Act (2008) (Vic) (“the Act”).  Section 20 (1) of the Act permits a person who has previously given consent to contributing their sperm to an IVF process may withdraw it at any time before the procedure is carried out. The withdrawal of consent must be given in writing. In this way, a donor can withdraw their consent, despite the egg being fertilized, so long as the embryo has not been transferred to the woman. There is no requirement for the donor to provide a reason for their withdrawal of consent.

Victoria is the only Australian state which allows donors to withdraw their consent until this point in the process. In other states such as New South Wales, the donor may only withdraw their consent up until the point where the embryo is created, rather than fertilised. A 2019 review of fertility laws commissioned by the Victorian government recommended that the current state legislation be made consistent with that of other states, such that a donor may only withdraw consent before the embryo has been fertilised, however this is yet to be implemented.

It is also of note that Section 21(1) (a) of the Act provides that the consent of the donor will have lapsed 10 years after it has been given.

Rights and requirements of the donor

Pursuant to Section 16(1) of the Act, the donor’s genetic material may be used in a procedure only if the donor has consented to its use in that specific procedure (for example, IVF). Furthermore, the donor’s consent must extend to the number of women they specify that the treatment be carried out upon pursuant to Section 17(1)(b). The donor must also have received counselling in relation to these matters before providing their consent. 

Overall, the legislation evinces a clear intention to balance the rights and entitlements of the donor against the emotional and moral weighting of their conduct in the context of an IVF procedure. It is arguable that the permission of a donor to withdraw consent post fertilisation may be perceived as an encroachment of the receiving couple’s right to continue with the procedure and fulfil their desire to conceive a child.

The legal status of a Donor Agreement as it relates to the withdrawal of consent

The receiving couple may be of the understanding that a withdrawal of consent by the donor is a repudiation of their Donor Agreement, which outlines the intention of the donor to enter into the IVF procedure and to contribute their genetic material. However, Donor Agreements are not legally binding in Australia. Therefore, a Donor Agreement will not be contractually binding on the donor and their withdrawal of consent will not be considered a repudiation or revocation of the Agreement’s terms.

The issue of compensation?

Despite the donor’s genetic contribution, the embryo may contain the genetic material of the recipient, for example, in the case of a donor sperm and egg contributed by the recipient mother. In that case, the allowance for withdrawal of donor consent implicitly allows the donor to retain control over the embryo, despite it also belonging to the receiving party. There is no provision in the Act for a claim for compensation being made by the receiving party, for emotional distress or otherwise. Significant economic costs associated with aborting an IVF procedure may also result from the withdrawal of consent.

At Nicholes Family Lawyers, we provide sensitive and tailored advice to couples who are seeking to undergo assisted reproductive treatment to conceive a child. To find out more information about your legal standing and options available to you when starting a family, please contact us by phone on 9670 4122, or by email at reception@nicholeslaw.com.au. You may also make an enquiry conveniently online here.