Anonymously provided sperm and the Constitution.

• Author: Byrn, Mary Patricia

INTRODUCTION

Obtaining sperm to use in Assisted Reproductive Technology ("ART") is relatively simple. (1) Hospitals, clinics, and sperm banks throughout the United States are in the business of selling sperm from literally thousands of men. (2) This does not mean, however, that becoming a sperm provider is easy. When a man decides to sell his sperm, he must first undergo an involved screening process to test for genetically inheritable and infectious diseases that could be transmitted through his sperm. (3) The screening process is purposefully rigorous, and sperm banks boast that the effect of these stringent guidelines is to eliminate ninety-nine percent of potential providers. (4) Once a man is approved to provide sperm, he contracts with the sperm bank to supply sperm for a specified period of time and designates himself as either an anonymous or open-identity sperm provider. (5)

Open-identity sperm providers contractually consent to be contacted by any offspring that result from their sperm. Contact protocols vary between sperm banks but, in general, when a provider-conceived child turns eighteen, he or she can contact the sperm bank and obtain the identity of and contact information for the sperm provider. (6) When a man chooses to provide his sperm anonymously, however, both the sperm provider and intended parents (7) agree to complete anonymity--that is, the sperm provider can never know the parents or any offspring, and vice versa. (8) Anonymous sperm providers make up the vast majority of men selling sperm. (9)

Several commentators have argued that the use of anonymously provided sperm causes significant harm to provider-conceived children. (10) There are four main concerns advanced by these commentators. First, there is concern that provider-conceived children suffer emotional and psychological harm. (11) These commentators assert that many provider-conceived children experience an identity crisis as the result of not knowing "where [they] came from." (12) Second, commentators assert that the use of anonymously provided sperm violates children's right to know their genetic parents. (13) This argument suggests that the children--and not the parents or sperm providers--should decide whether there will be any contact between the sperm provider and his offspring. Third, there is concern that the use of anonymously provided sperm will lead to unintended romantic relationships between genetic half-siblings. Here, commentators point to the lack of regulatory limits on the number of offspring that can be conceived using a given provider's sperm as causing an increased chance of incest between provider-conceived offspring. (14) Finally, commentators are concerned that provider-conceived offspring are unable to adequately monitor their health and treat medical conditions because they are denied access to genetic information about their sperm provider. (15)

In an effort to address these concerns, commentators have made two recommendations. First, they have called for a ban on anonymously provided sperm. (16) They argue that only sperm from open-identity providers should be available for use in ART. Second, some of these commentators have also called for mandatory disclosure to inform provider-conceived children that they were conceived with purchased sperm. (17)

This article takes issue with both of these proposed regulations for two reasons. First, a ban on anonymously provided sperm and a requirement that parents inform their provider-conceived children of the details of their conception implicate constitutionally guaranteed fundamental rights. For such legislation to be constitutional, it would presuppose that the fundamental rights to procreate and to raise one's child are less robust for persons who conceive via ART than they are for persons who conceive through sexual reproduction. Currently, commentators advocating for these regulations implicitly presume that persons who conceive via ART have lesser rights. Second, as a policy matter, such regulations are unnecessarily broad. A more tailored legislative response in the form of a national registry would address the legitimate concerns over the use of anonymously provided sperm without threatening the fundamental rights of ART parents.

Part I of this article analyzes the constitutional issues that would arise if these legislative policies were adopted. This Part argues that such legislation, if applied to everyone, would violate the fundamental rights to procreate and to raise one's child. Therefore, implementation of the proposed ban on anonymously provided sperm and the accompanying disclosure mandate would be constitutional only if persons who conceive via ART have weaker constitutional rights to procreate and to raise their children than other persons. This Part also asserts that children, whether conceived via reproduction or ART, do not have a right to know their genetic parents. Part II advocates for a more measured and carefully tailored legislative response to the concerns regarding anonymously provided sperm. Regulation that requires clinics to track sperm providers' information, but not their identities, can effectively address the legitimate concerns surrounding the use of anonymously provided sperm without compromising the constitutional rights of persons who conceive via ART.

1. The Constitutionality of Regulating Anonymously Provided Sperm

   The ban on anonymously provided sperm and its attendant disclosure mandate implicate both the fundamental right to procreate and the fundamental right to raise one's child. Whether these fundamental rights apply equally to persons that procreate via ART as to those that procreate via sexual reproduction, however, has not been directly addressed by the Supreme Court. This question has been debated by others and we do not join that debate here. (18) Instead, this article analyzes the ban on anonymously-provided sperm and the accompanying disclosure mandate and concludes that, if ART parents have the same fundamental rights as parents that conceive via sexual reproduction, then such regulations would violate the fundamental rights of ART parents to procreate and raise their children. As such, advocating for such legislation presupposes a conclusion that persons who conceive via ART do not share the same fundamental rights as persons who conceive through sexual reproduction. (19)

   1. A Ban on Anonymously Provided Sperm Would Violate the Fundamental Right to Procreate

      A growing number of commentators support a legal ban on anonymously provided sperm that would prohibit anonymity between sperm providers, intended parents, and offspring regardless of any wishes of these parties to the contrary. (20) Commentators assert that such an open-identity policy would advance the interests of provider-conceived children. (21) Specifically, they argue that a ban on anonymously provided sperm is necessary to allow proper identity development in provider-conceived children, (22) to protect children's right to know their genetic fathers, (23) to prevent unintentional half-sibling relationships, (24) and to facilitate adequate medical care of provider-conceived children. (25) Although addressing such concerns is well-meaning, the effect of a ban on the constitutional rights of ART users would be devastating. Ultimately, a ban on anonymously provided sperm would threaten the fundamental right of ART users to procreate.

      The right to procreate was first recognized as a fundamental right in Skinner v. Oklahoma. (26) In declaring an Oklahoma sterilization statute unconstitutional, the Court identified procreation as a basic civil liberty, one fundamental to the existence of humankind. (27) After Skinner, the Supreme Court made it clear that the right to procreate not only includes the right to have children, but also the right of individuals to make decisions concerning reproduction. (28) In Eisenstadt v. Baird, the Court explained: "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." (29) While the Court relied on this rationale to recognize the right of individuals to purchase and use contraceptives, the underlying principles stand for more. The Court recognized that the privacy right of women and men to control their reproductive autonomy includes the ability to choose whether and when to have a child. (30)

      Consequently, the fundamental right to procreate protects from governmental interference a number of personal procreative decisions; many of which society takes for granted. For example, it is axiomatic that prohibiting certain individuals from having children would violate the fundamental right to procreate. Single women, unmarried couples, older women, people with genetic diseases, people with physical or cognitive disabilities, rich people, poor people, and people with criminal records are all free to procreate. Likewise, regulations dictating when, where, or with whom a person can procreate would result in societal outrage. In general, any regulation that unnecessarily impacts decisions concerning whether to have a child would violate the right to procreate and deeply offend societal expectations of reproductive autonomy.

      A ban on anonymously-provided sperm would impact the ability of persons to choose whether, when, and how to have a child. Therefore, if the fundamental right to procreate does extend to ART, a ban on anonymously provided sperm would be subject to the same constitutional analysis as other regulations impacting the right to procreate. (31) As such, the ban would be constitutional only if it survives strict scrutiny; that is, if it does not infringe the fundamental right to procreate or is necessary to serve a compelling government interest. (32) As discussed infra, however, the ban would fail this strict...