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Health

Couples left heartbroken after sperm donor withdraws consent for use of embryos in Victoria

Kariah and Lissa Koehler were left heartbroken after their sperm donor withdrew consent last week. (Supplied)

Victorian couple Lissa Koehler and her wife Kariah had always planned to give their three-year-old daughter a biological sibling, using one of five embryos kept in storage for the past five years.

Last week, the donor that provided sperm for all of Lissa's embryos withdrew consent for them to be used, and Lissa was told they would be destroyed.

Unlike other parts of Australia, Victoria has laws which explicitly allow sperm donors to withdraw consent for their sperm to be used, even after the creation of an embryo.

She said that, given her daughter may never meet her father, she had hoped to give her another biological connection.

"She would have a link to a biological human being her brother or her sister, so that was always my rationale behind it," she said.

The road to having her daughter had already been a difficult one.

Putting on five kilograms in fluid within 48 hours was just one example of the severe side effects she experienced while creating the embryos through IVF and said it had a big impact on her emotional state. 

"I'm not someone who has suffered from mental illness or anything like depression or anxiety, but at one point, I just didn't even want to live," she said. 

Lissa said even if she started over with a new donor, being five years older would have a huge impact on whether she could conceive.

"It's unfortunately a reality that a woman at 35, compared to a woman at 40 is not as fertile, so the reality for us now is that we would have to start the IVF process all over again," she said.

"For me, putting my body through that is a really, really scary and daunting thought."

Lissa and Kariah Koehler on their wedding day. (Supplied)

She said despite the potential fallout of the donor retracting his consent, she does not remember being notified about the possibility when she was consulting with her clinic.

"We had two counselling sessions, and it's not something that I recall being told at all," she said.

"If it was said, it was very loosely brushed over."

Laws are 'cruel and crushing'

Jess and Leroy Natoli had just moved from Melbourne to Adelaide, having spent more than $30,000 creating embryos using the same donor, when they were told they could not use them.

Adelaide couple Jess and Leroy were looking forward to becoming parents. (Supplied)

Despite living in a different state, the couple have no legal recourse, and the Victorian laws still apply.

"It's quite scary when that can be taken away and everything that you've put all your time, money, effort, emotional time into, can just be destroyed with just one person's decision," Leroy said.

"We want to see Victoria come in line with all the other states where, if a donor pulls out, they can pull out any of their donations, but when the actual embryos are created, the donor has no right to ask for those to be destroyed."

Leroy and Jess were left devastated when a donor withdrew consent. (ABC News: Gabriella Marchant)

Fertility lawyer Stephen Page said he agreed the Victorian laws were "cruel and crushing" and needed to change.

"In the rest of Australia the withdrawal of consent is really irrelevant once the embryo is created, then the people who've created the embryo have control over it," he said.

"What we've seen with this couple in Adelaide, is Victoria has actually exported its problem somewhere else."

Mr Page pointed to a review of fertility laws commissioned by the Victorian Government which recommended the state change its legislation to "bring Victoria into line with interstate practice where withdrawal of consent by a donor is only permitted until the [donors] have been used to create an embryo".

Laws must consider future children

Western Sydney University law expert Sonia Allan said couples like the Koehlers, who say their fertility clinic did not adequately inform them about the legal situation in Victoria, could take legal action seeking compensation.

"They'd be looking at potentially claiming that money back as an economic loss, they might also be entitled to compensation for the emotional aspects of what they've endured," Professor Allan said.

However, she warned calls to change the law should take the future children into consideration.

"Donor-conceived people have a right to access information about the donor, and many want to contact [them]," she said.

"Presumably, they would be met with a hard and fast no — or perhaps an 'I never wanted you to be created'.

"It may be that it is in the interests of clinics to advocate for changes to the law, but it is important to remain child focused and to think deeply about the implications for people born as a result."

Health law expert Sonia Allan said couples could consider legal action. (Supplied: Dr Sonia Allen)

She said because no other state had legislated the right for donors to remove consent after an embryo had been created did not mean that donors could not contest the use of their sperm in other jurisdictions. 

She said states like Queensland and Tasmania for example, do not have explicit laws regulating donor conception, and so relied on federal statutory authority guidelines.

"While the guidelines take the position that the donor's consent can only be revoked up until the point an embryo is created, they have not been scrutinised by parliament in the same way as legislation," Professor Allan said.

"The position also has not been tested by the courts.

"The position also conflicts with that taken when couples create an embryo without a donor, and then separate.

"Where one party revokes their consent, the embryo cannot be used."

The Victorian Health Minister has been contacted for comment.

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