California’s New Law Affects Donor Anonymity
Recently, California has implemented a law which will have an impact on anonymous sperm, egg and embryo (“gamete”) donations in the future. Effective January 1, 2020, the new Health and Safety Code section 1644.2-1644.3 will require gamete banks (defined as sperm and egg banks and IVF clinics) to (1) provide each donor with information regarding the donor’s choice regarding identity disclosure; (2) obtain a declaration regarding identity disclosure; and (3) maintain identifying information and medical information about each gamete donor, including records of their screening and testing.
Of particular concern is that donors, who usually have made a choice whether to be anonymous or known in their gamete donation contract, will also sign a declaration provided by the gamete bank that states whether or not the donor agrees to disclose their identity to any child conceived from their donation should the child request it from the gamete bank after turning 18.
According to the law, even if the donor chooses not to have his or her identity revealed when requested by the adult donor conceived child at the time of the donation, the gamete bank has the duty to notify the donor as to the request and allow that donor another chance to withdraw the declaration. A donor who has chosen to disclose their identity does not have an option to withdraw their disclosure declaration. In any event, the gamete bank will be required to provide the adult donor conceived child, or the parent of the child if the child is a minor, access to non-identifying medical information provided by the donor.
What happens if the clinic fails to offer or keep a copy of a donor’s declaration of disclosure?
If the clinic fails to keep the donor’s declaration or failed to offer a declaration, the clinic will be obligated to disclose the donor’s identity and contact information to the adult donor conceived child. According to the law, if there is no declaration from the donor refusing to disclose their identity, the gamete bank “shall provide the child with identifying information of the donor who provided the gametes.”
As the law affects only donations occurring on or after January 1, 2020, it means that the first requests for donor information from donor conceived children will not occur until at least 2038. Therefore, time will tell the impact of this new law. Nonetheless, it is important that donors and intended parents be aware of this law and understand how this affects anonymous egg, sperm and embryo donations in California in the future.
If you are starting an egg, sperm or embryo donation journey, contact Tsong Law Group for a consultation.
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This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.