[Resource] California Will Be Defaulting to Open Identity Sperm and Egg Donation with an Opt Out in 2020

Some of you may have noticed that I went on KPCC last week to talk to Larry Mantle about sperm donation in California.  The repeated question kept coming up: don’t people have a right to more information?  With the advent of at home DNA kits, it seems that the information may be coming out whether people want it or not. 

California is actually going to be implementing a new law starting with sperm and egg (“gamete”) donations collected on or after January 1, 2020.  Starting at that time, gamete banks will be required to collect from donors:

·         Identifying information: the full name of the donor, the donor’s date of birth, and the permanent address, current address or other contact information given at the time of donation

·         Medical information: information regarding a present illness of the donor, past illness of the donor, and social, genetic, and family history of the donor

They will also be required to give the donor the choice to sign a declaration that states whether or not the donor will agree to disclose their identity to any child conceived from their donation after the child turns 18.  The law allows a closed identity donor to change their mind and withdraw their refusal of disclosure, but an open identity donor does not have an option to withdraw their disclosure declaration. 

Donor conceived adults or the parents of donor conceived children from these donations will now have a right to request and receive the medical information collected about the donor. 

And, here’s the kicker, once the donor-conceived person turns 18, they can go back to the gamete bank that collected the sperm or eggs and request the donor’s identifying information.  If they do, the law requires that the donor’s identifying information be provided unless the donor signed and did not withdraw a declaration refusing to share their identity.  And even if they still have a refusal on file, the gamete bank is required to make a good faith effort to notify the donor and give them the opportunity to change their mind and release their identifying information at that time.

What’s the most interesting to me, though, is the question of what happens if the gamete banks failed to get the donor to sign a declaration about whether or not they would disclose their identity. While the banks are required to do so under the law, if they fail on this requirement, the donor will by default become an open identity donor. If there is no declaration from the donor refusing to disclose their identity, then according to Health and Safety Code 1644.3, the gamete bank “shall provide the child with identifying information of the donor who provided the gametes.”

While the law doesn’t force gamete donors to share their identity, it now moves in the direction of encouraging such a disclosure.  January 1, 2020 (and really January 1, 2038 when the first donor conceive people of those donations start turning 18) will be a new and more open beginning for gamete donors and the donor conceived. 

For more details, check out Health and Safety Code Chapter 4.2.