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APPENDIX 6. Human Assisted Reproduction Bill

(as to be amended by Supplementary

Order Paper 80/2003 excerpts)

PART 4

INFORMATION ABOUT DONORS OF DONATED CELLS AND DONOR OFFSPRING

Application

40 No retroactive application

This Part—

(a) applies to an embryo or a donor offspring if, and only if, every donated cell from which the embryo or donor offspring was formed was donated after the commencement of this Part; and

(b) applies to a donated cell if, and only if, it was donated after the commencement of this Part.

41 Provisions not applicable to all information

The provisions of this Part apply to information only if the information is required to be kept by this Part.

Duties of keepers of information when information

requests are made

42 Duty to ensure that person requesting information is authorised

(1) When a person requests a provider or the Registrar-General to give the person access to information required to be kept by this Part, the provider or the Registrar-General must not give the person access to that information unless satisfied about the identity of the person who is making the request.

(2) Each provider and the Registrar-General—

(a) must adopt appropriate procedures to ensure that any information intended for a person is received—

(i) only by that person; or

(ii) if the request is made by an agent of the person, only by that person or his or her agent; and

(b) must ensure that, if the request is made by an agent of the person, the agent has the written authority of that person to obtain the information or is otherwise properly authorised by that person to obtain the information.

Advice to prospective donors

43 Providers must give advice to prospective donors

(1) A provider must ensure that, before a person consents to donating a donated cell to or through the provider, or to any service performed or arranged by the provider that involves a donated cell, the person is told the things described in subsection (2).

(2) The things are as follows:

(a) which information about donors is obtained and kept by providers:

(b) how long the information is kept:

(c) why the information is obtained and kept:

(d) which part of the information is forwarded to, and kept indefinitely by, the Registrar-General:

(e) the rights given by this Act to donor offspring, the guardians of donor offspring, and other people to obtain information about donors:

(f) the rights given by this Act to donors and other people to obtain information about donor offspring:

(g) which provisions of this Act require the information to be obtained, kept, or forwarded, or give the rights.

Information about donors

44 Providers must obtain and accept information about donors

(1) When a donor donates a donated cell to or through a provider, the provider must ensure that the provider has obtained the following information about the donor:

(a) the donor’s name and the date, place, and country of the donor’s birth:

(b) the donor’s height:

(c) the colour of the donor’s eyes and hair:

(d) the donor’s ethnicity:

(e) any aspects, considered significant by the provider, of the medical history of the donor and of the donor’s parents, grandparents, and any siblings.

(2) The provider must accept any information that is offered by the donor that updates or corrects any of the information about the donor obtained under subsection (1).

45 Providers and Registrar-General must keep information about donors

(1) A provider must, in accordance with this section, keep all information about a donor obtained or accepted under section 44 in relation to any donated cell.

(2) In any case where the use of the donated cell results in the birth of a living donor offspring, the provider must give the information to the Registrar-General on the earlier of the following events:

(a) the expiry of 50 years after the date of that birth:

(b) the provider ceasing to be a provider in circumstances where there is no successor provider.

(3) The Registrar-General must keep indefinitely all information given under subsection (2).

(4) In any case where no living donor offspring is formed from the donated cell, the provider may destroy the information on the occurrence of any of the following events:

(a) the termination (otherwise than by the birth of a living child) of a pregnancy resulting from the implantation of an embryo formed from the donated cell:

(b) the destruction before implantation of an embryo formed from the donated cell:

(c) the destruction of the donated cell.

46 Access by donors to information about them kept by providers

If asked to do so by a donor, a provider must—

(a) give the donor access to any information about the donor that the provider is keeping; and

(b) tell the donor whether the donor offspring has asked for information about the donor.

47 Access by donor offspring to information about donors kept by providers

(1) If asked to do so by a donor offspring who is 18 years or older, a provider must tell the donor offspring whether the provider is keeping any information about the donor and, if so, give the donor offspring access to it.

(2) If asked to do so by a guardian of a donor offspring who is under 18 years, a provider must tell the guardian whether the provider is keeping any information about the donor and, if so, give the guardian access to it.

(3) A provider may refuse to give a person access to information about a donor if satisfied, on reasonable grounds, that the disclosure is likely to endanger any person.

(4) Subsection (3) overrides subsections (1) and (2).

48 Access by donor offspring to information about donors kept by Registrar-General

(1) If asked to do so by a donor offspring who is 18 years or older, the Registrar-General must tell the donor offspring whether the Registrar-General is keeping any information about the donor and, if so, give the donor offspring access to it.

(2) If asked to do so by a guardian of a donor offspring who is under 18 years, the Registrar-General must tell the guardian whether the Registrar-General is keeping any information about the donor and, if so, give the guardian access to it.

(3) The Registrar-General may refuse to give a person access to information about a donor if satisfied, on reasonable grounds, that the disclosure is likely to endanger any person.

(4) Subsection (3) overrides subsections (1) and (2).

49 Restriction on access to information about donors

A provider or the Registrar-General must not allow any person access to information about a donor unless—

(a) authorised or required to do so by this Act; or

(b) required to do so by any other enactment or rule of law; or

(c) the information is relevant for the purposes of providing medical treatment or medical advice to a person, and is requested by a medical practitioner who produces a certificate signed by 2 medical practitioners that states that access to the information should be obtained for those purposes.

Information about donor offspring

50 Providers must keep track of donor offspring births

A provider must ensure that, at all times, there is in place an efficient system for being notified of, or otherwise becoming aware of, the births of donor offspring.

51 Providers must notify Registrar-General of donor offspring births

A provider who learns of the birth of a donor offspring must promptly—

(a) take all practicable steps to obtain, from any person who knows of the donor offspring, the following information:

(i) the date and place of the donor offspring’s birth:

(ii) the donor offspring’s sex:

(iii) the donor offspring’s name; and

(b) give to the Registrar-General, on a form provided by the Registrar-General for the purpose,—

(i) the information that the provider has been able to obtain under paragraph (a); and

(ii) the names and addresses of the guardians of the donor offspring; and

(iii) the donor’s name and the date, place, and country of the donor’s birth; and

(iv) the name of the provider.

52 Providers must give Registrar-General corrected information

If a provider who has given the Registrar-General information under section 51(b) receives additional information that updates or corrects any of the information already given, the provider must promptly give the Registrar-General the updated or corrected information.

53 Registrar-General and providers must keep information about donor offspring

(1) The Registrar-General must keep indefinitely all information given under section 51 or section 52.

(2) A provider must keep all information obtained under section 51 or accepted under section 54 until the expiry of the specified period.

(3) In subsection (2), specified period means the period that starts with the date of the birth of the donor offspring concerned and expires on the earlier of the following:

(a) the expiry of 50 years after the date of that birth:

(b) the provider ceasing to be a provider in circumstances where there is no successor provider.

54 Providers to accept updated and corrected information about donor offspring

(1) If a donor offspring who is 18 years or older offers to a provider any information that updates or corrects any of the information already given under section 51(b) about the donor offspring, the provider must accept the updated or corrected information.

(2) If a guardian of a donor offspring who is under 18 years offers to a provider any information that updates or corrects any of the information already given under section 51(b) about the donor offspring, the provider must accept the updated or corrected information.

55 Access by donor offspring to information about them kept by providers or Registrar-General

(1) If asked to do so by a donor offspring who is 18 years or older, a provider or the Registrar-General must—

(a) give the donor offspring access to any information about the donor offspring kept by the provider or the Registrar-General, as the case equires:

(b) tell the donor offspring whether the donor has asked for information about the donor offspring.

(2) If asked to do so by the guardian of a donor offspring who is under 18 years, a provider or the Registrar-General must—

(a) give the guardian access to any information about the donor offspring kept by the provider or the Registrar-General, as the case requires:

(b) tell the guardian whether the donor has asked for information about the donor offspring.

56 Donor offspring 18 years or older may consent to disclosure of identifying information to donor

(1) A donor offspring who is 18 years or older may give a provider or the Registrar-General a written notice—

(a) consenting to the disclosure of identifying information about the donor offspring to the donor; or

(b) cancelling a notice given to the provider or the Registrar-General by the donor offspring under paragraph (a).

(2) A provider or the Registrar-General must keep with any information about the donor offspring kept under this Act every notice given by the donor offspring under subsection (1).

(3) For the purposes of any provision of this Act, a provider or the Registrar-General has the consent of a donor offspring to the disclosure to the donor of identifying information about the donor offspring if, and only if,—

(a) the provider or the Registrar-General holds a notice given by the donor offspring under subsection (1)(a); and

(b) that notice has not been cancelled under subsection (1)(b).

57 Access by donors to information about donor offspring kept by providers

(1) At the request of a donor, a provider must tell the donor whether, to the best of the provider’s knowledge, there have been born any donor offspring formed from a donated cell given to or through the provider and (if so) the sex of each donor offspring.

(2) If the provider has the donor offspring’s consent to give the donor access to identifying information about the donor offspring, the provider must do so at the donor’s request.

(3) The provider may refuse to disclose to the donor, or give the donor access to, information about the donor offspring if satisfied, on reasonable grounds, that to do so is likely to endanger any person.

(4) Subsection (3) overrides subsections (1) and (2).

58 Access by donors to information about donor offspring kept by Registrar-General

(1) At the request of a donor, the Registrar-General must tell the donor whether information given to the Registrar-General under section 51(b) discloses that there have been any donor offspring born and, if so, the sex of each donor offspring.

(2) If the Registrar-General has the donor offspring’s consent to give the donor access to identifying information about the donor offspring, the Registrar-General must do so at the donor’s request.

(3) The Registrar-General may refuse to disclose to the donor, or give the donor access to, identifying information about the donor offspring if satisfied, on reasonable grounds, that to do so is likely to endanger any person.

(4) Subsection (3) overrides subsections (1) and (2).

59 Restriction on disclosure of information about donor offspring

A provider or the Registrar-General must not disclose any information about a donor offspring unless—

(a) authorised or required to do so by this Act; or

(b) required to do so by any other enactment or rule of law. Court orders deeming certain donor offspring to be 18

60 Family Court may confer certain rights on donor offspring aged 16 or 17

(1) A donor offspring who is 16 years or older but under 18 years may apply to the Family Court for an order that for the purposes of 1 or more of the provisions stated in subsection (2) the donor offspring is to be treated as a donor offspring who is 18 years old.

(2) The provisions are sections 47(1), 48(1), 54(1), 55(1), and 56(1).

(3) If satisfied that it is in the best interests of the donor offspring to do so, a Family Court Judge may make an order that requires a named provider or the Registrar-General, or both, to treat, for the purposes of 1 or more of the provisions specified in subsection (2), the donor offspring as a donor offspring who is 18 years old.

(4) Rules may be made under section 16A of the Family Courts Act 1980 relating to the practice and procedure of Family Courts in proceedings under this Act.

Application of Privacy Act 1993

61 Application of Privacy Act 1993

(1) Any person may make a complaint to the Privacy Commissioner holding that office under section 12 of the Privacy Act 1993 if—

(a) the person is dissatisfied with any decision, action, or failure to act by a provider or the Registrar-General in relation to—

(i) a request under this Act for information or access to information; or

(ii) a request under this Act to accept updated or corrected information; or

(b) the person believes that information—

(i) has been obtained, kept, or disclosed otherwise than in accordance with this Act; or

(ii) has not been obtained, accepted, kept, or given, as required by this Act.

(2) Sections 40 and 41 of the Privacy Act 1993, so far as applicable and with any necessary modifications, apply to any request of a kind referred to in subsection (1)(a).

(3) Parts VIII, IX, and XII of the Privacy Act 1993, so far as applicable and with any necessary modifications, apply to the making of a complaint under subsection (1) as if the matter to which the complaint relates were an interference with privacy within the meaning of section 66 of that Act.

(4) Nothing in this section limits the jurisdiction of the Privacy Commissioner under the Privacy Act 1993 to investigate any complaint made under Part VIII of that Act.

Part V

To omit this Part from page 12.

Part VI

To omit this Part from pages 12 and 13, and substitute the following Part:

Bibliography

REPORTS

New Zealand

Department of Social Welfare Puao-Te-Ata-Tu: The Report of the Ministerial Advisory Committee on a Maori Perspective for the Department of Social Welfare (Department of Social Welfare, Wellington, 1986)

Claire Dominick Early Contact in Adoption: contact between birth mothers and adoptive parents at the time of and after the adoption (Research section, Department of Social Welfare, Wellington, 1988)

Law Commission Adoption and Its Alternatives: A Different Approach and a New Framework (NZLC R65, Wellington, 2000)

Law Commission Mäori Custom and Values in New Zealand Law (NZLC SP9, Wellington, 2001)

A Mikaere, G Ririnui and D Pitama “Guardianship, Custody and Access: Maori Perspectives and Experiences” (Paper for the Ministry of Justice, Wellington, August, 2002)

Ministerial Committee on Assisted Reproductive Technologies Assisted Human Reproduction: Navigating our Future (Wellington, 1994)

B Slane Guthrie Tests (Office of the Privacy Commissioner, Auckland,

25 September 2003)

Statistics New Zealand New Zealand Now: Children (Wellington, 1998).

Statistics New Zealand 2001 Census: Families and Households (2001) (Wellington, December 2002)

Australia

Australian Law Reform Commission Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC 96, Sydney, March 2003)

United Kingdom

M Brazier, S Golombok and A Campbell Surrogacy: Review for Health Ministers of Current Arrangements for Payment and Regulation, Report of the Review Team (London, October 1998)

British Medical Association Changing Conceptions of Motherhood: A Report of Surrogacy (London, 1995)

Human Genetics Commission report for the Department of Health Inside Information: Balancing Interests in the Use of Personal Genetic Data (London, 2002)

Lord Chancellor’s Department Procedures for the Determination of Paternity and on the Law of Parental Responsibility for Unmarried Fathers – A Consultation Paper (March 1998)

United States

New York State Task Force on Life and Law Assisted Reproductive Technologies: Analysis and Recommendations for Public Policy (New York, 1998)

Canada

The Offspring Speak report to Health Canada on an international conference of donor offspring (Toronto, 12 August 2000)

Royal Commission on New Reproductive Technologies Proceed with Care: final report of the Royal Commission on New Reproductive Technologies (Canadian Communications Group, Ottawa, 1993)

TEXTS

B P Aigen Motivations of Surrogate Mothers: Parenthood, altruism and self actualisation (a three year study) (The American Surrogacy Centre, 1996)

E Blyth, M Crawshaw and J Spiers Truth and the Child 10 Years On: Information exchange in donor assisted conception (British Association of Social Workers, Birmingham, 1998)

E Blyth and C Potter “Paying for it: Surrogacy, Market Forces, Assisted Conception” in R Cook, S Day Sclater and F Kaganas (eds) Surrogate Motherhood: International Perspectives (Hart, Portland (Oregon), 2003) 227

Ken Daniels “The Policy and Practice of Surrogacy in New Zealand” in R Cook, S Day Sclater and F Kaganas (eds) Surrogate Motherhood: International Perspectives (Hart, Portland (Oregon), 2003) 55

A Dickey Family Law (3 ed, LBC Information Services, Sydney, 1997)

G Dodd “Surrogacy and the Law in Britain: Users’ Perspectives” in R Cook,

S Day Sclater and F Kaganas (eds) Surrogate Motherhood: International Perspectives (Hart, Portland (Oregon), 2003) 118

R Edelmann “Psychological Assessment in Surrogate Motherhood” in R Cook, S Day Sclater and F Kaganas (eds) Surrogate Motherhood: International Perspectives (Hart, Portland (Oregon), 2003) 146

R Edwards Life Before Birth – Reflections on the Embryo Debate (Century Hutchinson, London, 1989)

A Else A Question of Adoption: Closed stranger adoption in New Zealand

1944–1974 (Bridget Williams Books, Wellington, 1991)

D Evans (ed) Creating the Child: The ethics, law and practice of assisted procreation (Nijhoff Publishers, The Hague, 1996)

J Fortin Children’s Rights and the Developing Law (2 ed, LexisNexis, United Kingdom, 2003)

D Hall and J Metge “Kua Tutu Te Puehu, Kia Mau: Maori Aspirations and Family Law” in M Henaghan and B Atkin (eds) Family Law Policy in New Zealand (2 ed, LexisNexis, Wellington, 2002) 41

Judge Inglis QC Family Law (Sweet & Maxwell, Wellington, 1960)

R G Lee and D Morgan Human Fertilisation and Embryology: Regulating the Reproductive Revolution (Blackstone Press, London, 2001)

L Melville Children and Young People in New Zealand: Key Statistical Indicators (FAIR Centre, Wellington, 2003)

R Pickford “Unmarried Fathers and the Law” in A Bainham, S Day Sclater and M Richards (eds) What is a Parent? – A Socio-Legal Analysis (Hart, Oxford, 1999)

L Pihama “Reconstructing meanings of family: lesbian/gay whanau and families in Aotearoa” in V Adair and R Dixon (eds) The Family in Aotearoa (Longman, Auckland, 1998) 179

R Rao “Surrogacy Law in the United States: The Outcome of Ambivalence” in R Cook, S Day Sclater and F Kaganas (eds) Surrogate Motherhood: International Perspectives (Hart, Portland (Oregon), 2003) 23

A Stirling and A Salmond Amiria: The life story of a Maori Woman (A H & H W Reed, Wellington, 1976)

F Tasker and S Golombok Growing Up in a Lesbian Family: Effects on child development (Guildford, London 1997)

E Temen “Knowing the Surrogate Body in Israel” in R Cook, S Day Sclater and F Kaganas (eds) Surrogate Motherhood: International Perspectives (Hart, Portland (Oregon), 2003) 261

J Triseliotis In Search of Origins: The Experiences of Adopted People (Routledge and Kegan Paul, London, 1973)

ARTICLES AND PAPERS

M Anderlik and M Rothstein “DNA-Based Identity Testing and the Future of the Family: A Research Agenda” (2002) 28 American Journal of Law

& Medicine 215

G J Annas “Fathers Anonymous: Beyond the Best Interests of the Sperm Donor” (1980) 14 FLQ 11

E L Baker “Who’s the Daddy?” (April 2003) She Magazine New Zealand 63

E Bartholet “Guiding Principles for Picking Parents” in Conference Papers – Genetic Bonds and Family Law: The Challenge of DNA Parentage Testing (American Society of Law, Medicine and Ethics New Orleans, March 27–28 2003)

E Blyth “I wanted to be interesting. I wanted to be able to say ‘I’ve done something interesting with my life’: Interviews with surrogate mothers in Britain” (1994) Journal of Reproductive and Infant Psychology 189

R Chan, B Raboy and C Patterson “Psychosocial adjustment among children conceived via donor insemination by lesbian and heterosexual mothers” (1998) 69 Child Development 443

S Gilmore “Parental responsibility and the unmarried father – a new dimension to the debate” (2003) 15–1 Child and Family Law Quarterly 21

M Garrison “Law Making for Baby Making: An interpretative approach to the determination of legal parentage” (2000) 113 Harv L Rev 835

Judge John Mitchell “Identity, Paternity and Human Rights” (February 15 2002) New Law Journal, 212

R A Monson “State-ing Sex and Gender: Collecting Information from Mothers and Fathers in Paternity Cases (June 1997) 11–3 Gender and Society 279

P Roberts JD “Truth and Consequences: Part I. Disestablishing the Paternity of Non-Marital Children” in Conference Papers – Genetic Bonds and Family Law: the Challenge of DNA Parentage Testing (American Society of Law, Medicine and Ethics, New Orleans, March 27–28 2003)

L Shanner, R Harris, E Blyth “Building Families through Donor Conception” (2002) 9–2 Journal of Infertility Counselling 18

D Sharp “Paternity Testing – Time to Update the Law?” (August 2000) Fam Law 560

F L Sonenstein, P A Holcomb, K S Seefeldt “What Works in Improving Paternity Rates (Fall 1993) 26 Public Welfare 26

R Stevens “Finding Out Who You Are: Issues Arising from Assisted Conception” (8 February 2003) 167 Justice of the Peace

M D Turner “Child Enforcement and In-Hospital Paternity Establishment in Seven Cities” (2001) 23–6 & 7 Children and Youth Services Review 557

J Wallbank “Too Many Mothers? Surrogacy, Kinship and the Welfare of the Child” (Autumn 2002) 10 Medical Law Review 272

UNPUBLISHED PAPERS

V Adair “Interim Report on Parents of Donor Children” (University of Auckland, approx 2002)

B Atlas “Lifting the Veil of Secrecy: The rights of donor conceived individuals” (dissertation for LLB(Hons), University of Auckland, 2003)

Caroline Bree “Lesbian Mothers: Queer Families: The Experience of Planned Pregnancy” (Master of Health Science thesis, School of Nursing and Midwifery, Auckland University of Technology, 2003)

Robin Fleming and Toni Atkinson “Families of a different kind – life in the households of couples who have children from previous marriages or marriage-like relationships: a social research project” (Families of Remarriage Project, Waikanae, 1999)

McNair and Dempsey “Queer Parenting: a thriving endeavour” (AIFS seminar, University of Melbourne, 21 February 2002)