The Rights of Donor-Conceived Offspring

Posted by Naomi Cahn, <i>Biopolitical Times</i> guest contributor April 15, 2015
Biopolitical Times
Baby and his father

[This blog is cross-posted at Concurring Opinions.]

The April 14 Washington Post prints an interesting article on regulation and the fertility industry. It quotes both  Marcy Darnovsky and me on the lack of oversight of assisted reproductive technology in this country.  Another issue that it addresses is the rights of donor-conceived offspring to learn the identity of their egg and sperm donors. As I’ve written in numerous articles and books, it is a fundamentally important right for all donor-conceived offspring to learn the identity of their donors.

Other academics disagree with this position, believing it important to protect the identity of gamete donors for a variety of reasons.  I disagree, and I think the  law has a critical role to play in ensuring respect for the rights of donor-conceived people.   Parents can make the legal choice never to find out the identity of their donor.  By contrast, donor-conceived offspring have no such legal right in the United States: unless their parents opted into a known donor program, they are unable to learn the identity of their donors.  While their parents’ choices affect them as children, donor-conceived children grow up, and many become curious about their origins. Yet the law’s tight focus on the parent-child relationship excludes legal questions relating to donor-conceived adults.

 

Donor conception has drawn on traditional adoption practices, including beliefs that a person did not need to know that she was adopted and did not need health or genetic information, but could be brought up as though she were the biological child of her parents.  It is, by contrast, now well accepted in the adoption world that adopted individuals not only have the right to know they are adopted, but also that they may be interested in finding their birth parents. An increasing number of states now allow adopted individuals to obtain their original birth certificates; thirty-one states have set up mutual consent registries, and others have established search and consent and other procedures.

There is no such widespread recognition in the donor-conception arena, notwithstanding the increasing number of donor-conceived family members who are looking for one another.  The Donor Sibling Registry has now matched more than 12,000 people, and the numbers are growing.  (Full disclosure: I am a member of the DSR’s board.)  The DSR is a mutual consent registry that works diligently to maintain the privacy of its members.

Yet the DSR can’t change the law. Instead, we need to do as so many other countries, including England, have done:  End donor anonymity and give donor-conceived offspring the right to learn about their origins.

Naomi Cahn is the Harold H. Greene Professor of Law at The George Washington University Law School. She is the author of numerous law review articles and several books, including The New Kinship (2013), and Test Tube Families: Why the Fertility Market Needs Legal Regulation (2009); she has co-authored Finding Our Families:  A First-of-Its-Kind Book for Donor-Conceived People and Their Families (2013)(with Wendy Kramer) and Marriage Markets: How Inequality is Remaking the American Family (2014)(with Professor June Carbone); and she has co-written casebooks in the fields of family law, trusts, and estates.