Comparing the rights of adoptees and donor-conceived offspring in states granting access to original birth certificates and adoption records: an equal protection analysis.

• Author: Sharp, Brittney N.

INTRODUCTION

Technological advancements in assisted human reproduction have created an entire infertility industry in the United States and abroad, and greatly increased demand for human eggs and sperm. After the birth of the first "test-tube baby" in 1978, (1) assisted reproduction has been commonly used to help couples overcome infertility struggles. Young and healthy men and women are recruited to sell their gametes for use in assisted reproduction while others make donations altruistically out of a desire to help others. It has been estimated that 100,000 young women have been recruited to sell their eggs to infertility clinics in the United States. (2) As an increasing number of individuals who are conceived through the use of donor gametes are reaching adulthood and seeking information about their genetic origins, debates concerning whether donation of human gametes should be made anonymously have surfaced. Some studies estimate that as many as 30,000 children are born each year in the United States as a result of anonymous sperm donation, and 5,300 from anonymous egg donation. (3) Additionally, the use of assisted reproduction to treat infertility has increased as the supply of adoptable children--especially healthy white infants--has decreased (4): "By 1988, only 3% of babies born to single white women were relinquished for adoption, compared to 19% before 1973." (5) Therefore, assisted reproduction has become "an alluring alternative to adoption." (6)

Assisted reproduction is largely unregulated in the United States, which is inconsistent with the majority of European countries that heavily regulate and restrict access to assisted reproductive technologies. As an article from the Center for Bioethics and Human Dignity explains: "[A]mong developed nations, the U.S. assisted reproduction or fertility industry is one of the least regulated.... Any technological means, regardless of the medical and ethical consequences, can be utilized in the pursuit of parenthood if the price is right." (7) Most gamete donations are made anonymously, and Washington is the only state that has passed legislation restricting donor anonymity. (8) In the vast majority of states, fertility clinics are largely self-regulated and can choose whether or not to abide by non-legally binding professional and medical guidelines. While the Ethics Committee of the American Society for Reproductive Medicine "strongly encouraged fertility programs to maintain accurate records of donor health to enable information to be shared with donor offspring," (9) the Centers for Disease Control and Prevention does not require fertility agencies to track the health records of individual donors. (10)

Many concerns raised by donor anonymity are the same as those that have arisen regarding adoption, particularly whether adult adoptees should have the right to obtain their adoption records and original birth certificates. Adoptees have raised arguments concerning the harmful effects of being deprived of information essential to the development of their personal identities, (11) as well as alleging a violation of their constitutional rights. (12) As a result, eight states now grant adopted adults access to their adoption records and/or original birth certificates. (13) However, the same states do not grant donor-conceived offspring the right to obtain the same information. (14) Similar disparities in the law exist in the Canadian province of British Columbia, prompting a discrimination claim and assertion of the right of donor offspring to receive the same information as adoptees. In the Canadian case of Pratten v. British Columbia, plaintiff Olivia Pratten alleged that donor offspring have been discriminated against because British Columbia's adoption laws allow adopted individuals to obtain information about their genetic origins, while donor-conceived offspring did not have access to the same information. (15)

This Note will explore whether donor-conceived offspring in states that grant access to adoption records could successfully argue that their equal protection rights under the Fourteenth Amendment have been violated because the states have not also granted them access to identifying information about their donors. In other words, this Note will explore whether a case similar to Pratten v. British Columbia could be successful in the United States. Donor offspring would need to seek to have a court apply a heightened level of scrutiny when analyzing their claim, and would do so by attempting to establish that they are members of a suspect or quasi-suspect class and/or that the right to receive information about one's genetic origin is a fundamental right. Part I will further expand on the concerns raised by donor anonymity and present arguments that are raised in support of anonymous donation. Part II will elaborate on the case of Pratten v. British Columbia and the discrimination arguments raised by the plaintiff. Part III will explore adoption law and the regulation of assisted reproduction in the United States. Part IV will present the issue in a constitutional framework and determine whether a potential equal protection claim exists for donor offspring located in states that grant access to adoption records. Lastly, this Note will argue that regardless of the equal protection claim, legislatures should impose regulations that ban donor anonymity for the policy reasons that will be discussed, and will suggest that legislative action may be a more effective way to confer additional rights on donor offspring to have access to information about their donors.

1. CONCERNS RAISED BY DONOR ANONYMITY

   One major implication of modern reproductive technologies is the psychological struggles faced by many of the children who are born through the use of donor gametes. Often these individuals have no way of obtaining information about the person(s) who makes up (at least) one half of their biological identity because egg and sperm donations are made anonymously. The focus of the infertility industry is solely to help a couple have a baby, with little to no consideration for the long-term implications or struggles that the donor-conceived child may face. (16) The interests of donor offspring are overlooked and the children are often given little or no choice about secrecy and anonymity after they have been brought into existence. (17) Arguments asserted against donor anonymity focus on the mental, physical, and psychological well-being of the children born through the use of assisted reproduction. Many argue that donor anonymity "undermines the interests of offspring regarding their genetic medical history and ancestral heritage." (18) They argue that without knowledge of their genetic history, individuals conceived through the use of donor gametes could lose opportunities to make medical decisions to help prevent the development of certain genetic diseases or suffer emotional distress from never having the opportunity to know anything about at least one biological parent. (19)

   Studies have found that children who are aware that they were conceived through the use of donor gametes are curious about their donors, and long to know "what they looked like, what they are like as persons, their education and interests, and especially details about their health and family health record." (20) All of these missing pieces of information would help the donor offspring form personal identities. The information would also help donor offspring understand who they are and where they came from because "[g]enetic heritage is an important influence in temperament, appearance, abilities, and other traits. Biologically based experiences of the self are significant components of a person's identity. Knowledge about ones [sic] genealogy is knowledge about oneself'." (21) A study by the Institute of American Values compared the psychosocial well-being of donor offspring, adopted children, and biological children. (22) According to the study, approximately half of the donor offspring surveyed reported that it made them sad to see their friends with their biological parents. (23) The study also revealed that donor offspring struggle with understanding their origins and identities and are more likely than biological children to report instances of substance abuse and problems with the law. (24)

   Testimonies given by donor offspring illustrate the struggles they face by not having access to information about their genetic histories. One donor offspring explained that when children are told they have their father's eyes, mother's laugh, or grandma's strength, they build a strong internal impression of who they are. Not having this type of information can be painful: "[W]hen you are raised in a family with different genetic origins nobody tells you that you have your dad's eyes, and the face in the mirror doesn't belong to anyone." (25) Another donor-conceived child stated:

   We didn't ask to be born into this situation, with its limitations and confusion. It's hypocritical ... to assume that biological roots won't matter to the 'products' of the cyrobanks' service when the longing for a biological connection is what brings customers to the banks in the first place. (26) Psychologists A.J. Turner and A. Coyle conducted a study to explore how donor offspring feel about their conception, difficulty in obtaining information about their biological history, and efforts to make contact with their missing "'father.'" (27) The donor offspring surveyed from the United Kingdom, United States, Canada, and Australia reported "feeling alienated from their families, startled and disoriented by the discovery of their donor status, and haunted by the spectral 'father' they would never know." (28) The researchers noted that participants had a "profound desire" to learn about their genetic origins, and had a "perceived loss of agency or self-efficacy because of the obstruction they faced in...