Rees Anne
School of Law, The University of Newcastle, New South Wales.
J Law Med. 2012 Jun;19(4):758-68.
This article considers the legal status of so-called contracts for anonymity between fertility clinics and donors of gametes that were made in the period before legislation authorising disclosure. It notes that while clinics frequently cite the existence of these "contracts" to argue against retrospective legislation authorising disclosure of the donor's identity, they may be nothing more than one-sided statements of informed consent. However, the article notes that even if an agreement between a donor and a clinic is not contractual, it does not follow that a person conceived through assisted reproductive technology has any right of access to the identity of the donor. The writer has not been able to locate examples of written promises by the clinics promising anonymity. There are written promises by the donors not to seek the identity of the recipients. These promises do not bind the resulting offspring nor do they appear to be supported by consideration. The article suggests that the basis for any individual donor to restrain a clinic from revealing their identity may be found in promissory estoppel. Nevertheless, there is no real issue in Australia concerning clinics revealing these details absent legislative authority. The issue is whether parliaments will legislate to authorise the disclosure. The article notes that it would be rare for parliaments to legislate to overturn existing legal contracts but suggests that the contract argument may not be as strong as has been thought.
本文探讨了在授权披露的立法出台之前，生育诊所与配子捐赠者之间所谓的匿名合同的法律地位。文章指出，虽然诊所经常援引这些“合同”的存在来反对授权披露捐赠者身份的追溯性立法，但它们可能只不过是知情同意的单方面声明。然而，文章指出，即使捐赠者与诊所之间的协议不是合同性的，通过辅助生殖技术受孕的人也不一定有权获取捐赠者的身份信息。作者未能找到诊所承诺匿名的书面承诺的例子。有捐赠者不寻求受赠者身份的书面承诺。这些承诺对由此产生的后代没有约束力，似乎也没有对价支持。文章认为，任何个别捐赠者限制诊所披露其身份的依据可能在于允诺禁反言。然而，在澳大利亚，若无立法授权，诊所披露这些细节实际上并无问题。问题在于议会是否会立法授权披露。文章指出，议会立法推翻现有合法合同的情况很少见，但认为合同论点可能没有人们想象的那么有力。
