Gamete donation: when does consent become irrevocable?

question, when, if at all, is it morally wrong to withdraw The case of a sperm donor objecting to the transfer of embryos consent? Arguably, moral questions are always open to interformed from his donation can be likened to disputes over pretation, however, until recently in Victoria, Australia, so too frozen embryos, where the sperm provider and the egg provider was the legal question. This article addresses both questions disagree over what should be the fate of their frozen embryos. with reference to the current legislation in Victoria and in the Two such well-known disputes, fought in the US courts, light of a recent instance of a sperm donor in Victoria who serve to illustrate attempts to arbitrate conflicting claims over sought to withdraw consent after embryos had been formed embryos. from his donation. This case is used to highlight the difficulties In the case of Davis v Davis (discussed in Annas, 1989; with the legislation in Victoria and the ethical issues that Robertson, 1989; Colker, 1996), the custody of seven frozen underlie attempts to resolve competing claims over gametes embryos was contested in a divorce action. In a highly and embryos. controversial decision the trial judge ruled that the embryos Reproductive technology in Victoria is governed by the were ‘children in vitro’, and awarded custody to Mrs Davis Infertility Treatment Act 1995 (the Act). This legislation (Davis v Davis, 1990). According to this decision, survival is incorporates an amended version of the 1984 (Medical Procedin the best interests of embryos and therefore the wishes of ures) Act, the world’s first legislation on in-vitro fertilization the party desiring to reproduce prevail. On appeal this decision (IVF). With regard to the present discussion, the relevant was later reversed. The judgement of the court of appeals amendments to the Act include the provision for persons born (Davis v Davis, 1992) was that even though embryos have from donated gametes, on turning 18 years of age, to seek been accorded more respect than mere human cells they are information which will or may identify the donor. Along with not given legal status equivalent to that of persons already the new statute, a new statutory body was established, the born. The Tennessee Supreme Court ruled that the party Infertility Treatment Authority (ITA), to administer infertility wanting to avoid reproduction should control disposition of services in Victoria, Australia. Following an objection from a the embryos, unless the other party has no other reasonable sperm donor to the use of embryos formed from his spermatoway of reproducing without the embryos in question. This zoa, the clinic storing the embryos in question sought clarificadecision relied on an understanding of a woman’s right to tion from the ITA, of the Act’s provisions for withdrawal of terminate a pregnancy as conferring on men the right not to consent. The Act allows that gamete donors can withdraw become a parent. consent before a procedure is carried out, however it is not In a similar divorce hearing in New York (Kass v Kass, clear to which procedure this refers (Infertility Treatment Act, 1998, discussed in Colker 1996; Annas, 1998), Maureen Kass 1995). On one reading of the Act it could be understood that attempted to gain sole custody of frozen embryos remaining a gamete donor can withdraw consent at any time prior to the after 10 unsuccessful IVF procedures. Her husband Steven transfer of embryos. However, another interpretation would Kass opposed her request. The Kass’s had signed a prior allow gamete donors to withdraw consent only for the use of agreement stating that in the event that they no longer wished their gametes, that is, until the time of fertilization. Given this to initiate a pregnancy or were unable to make a decision