THE legal status of contracts promising anonymity for people who donate sperm has been thrown into doubt by new research suggesting such agreements may not be binding.
As the state government awaits the findings of an inquiry into whether donor-conceived children should know their biological parent, a new study has raised questions about the notion of so-called contracts designed to protect the donors.
In an article recently published in the Journal of Law and Medicine, University of Newcastle law professor Anne Rees examined agreements between hospitals and men who donated sperm in previous decades.
She found that while promises might have been made in the past to ensure the donor's identity was not released, such agreements were unlikely to be legally binding, ''and can also be negated by appropriately drafted legislation''.
''While there may have been assurances, they may not be promises enforceable in contract and indeed, the so-called 'contracts' may be nothing more than statements of informed consent,'' Professor Rees wrote.
The article comes after the state government asked the Victorian Assisted Reproductive Treatment Authority to examine whether the law should change so that children born through sperm donation can have access to their donor's identity.
At present, access operates on a three-tiered system. Children born after 1998 can get information about their biological parent because their donors were required to consent to it being released.
Those born between 1988 and 1997 also have the right to identifying information, provided the donor agrees. But those born before 1988 don't have the same rights - their only option is to put themselves on a voluntary register and hope their donor does the same.
State Parliament's law reform committee investigated the issue last year, and in a contentious proposal, recommended changing the law to allow all donor-conceived children to know where they came from.
However, the Baillieu government decided to defer the issue to another inquiry, arguing that it needed more information from donors before it could come to a conclusion.
In her article, Professor Rees argues that despite questions about the validity of contractual assurances ''this does not in itself give the offspring the right to the identity [of their donor]''.
''Other legal interests may still need to be addressed,'' she said, ''including how to balance the donor-conceived offspring's interests in having information, against the interests of those donors who want to maintain the privacy/confidentiality of personal information.''