A Balancing Act? the Rights of Donor-conceived Children to Know Their Biological Origins

• Publication year: 2012

A Balancing Act? The Rights of Donor-Conceived Children to Know Their Biological Origins

Brigitte Clark^*

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Table of Contents

I. Introduction...............................................................................621

II. International Jurisprudence: Child's Best Interests?......624

A. Interpretation of the CRC.........................................................625
B. The European Court of Human Rights: A Holistic Approach?................................................................................630

III. Comparative Law Position: Contrasting Approaches........633

A. France: Anonymity Rules.........................................................634
B. Sweden and England: Banning Anonymity but No Absolute Right.........................................................................................635
C. United States: No Federal Legislative Regulation...................638

IV. Justifications for Nondisclosure...........................................639

A. Focusing on the Would-Be Parents..........................................640

1. Deliberate Deception or Legitimate Failure to Disclose?............................................................................640

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2. Parents' Reasons for Nondisclosure..................................640
3. Discrimination Against "Social" Parents.........................641

B. Focusing on the Sperm Donor..................................................642

1. Protection of the Sperm Donor..........................................642
2. Detrimental Effects of Removal of Donor Anonymity........643

C. Focusing on the Child..............................................................645

1. The Child's Right to Life and Autonomy............................645
2. The Analogy of Adoption...................................................646
3. Child's Welfare and Knowledge of Genetic Origins.........647

V. Justifications for Disclosure..................................................649

A. The Importance of Genes.........................................................650
B. Lack of Regulation Leads to Dangerous "Free for All"?........651
C. Focusing on the Child..............................................................653

1. "Genealogical Bewilderment" and the Movement from Welfare to Rights...............................................................653
2. Disclosure of Identity by Lesbian Couples to Their Donor-Inseminated Children.............................................656

VI. Conclusion...................................................................................658

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I. INTRODUCTION

Increasing numbers of children are conceived through donor-assisted conception utilizing donated gametes, especially donated sperm.¹ Despite the fact that using donated sperm is one of the most ancient forms of fertility treatment, it has traditionally been shrouded in secrecy, perhaps because it is used most commonly to redress problems of a husband's infertility through the use of donated semen.² However, the unabated advance of medical science (exemplified by the development of DNA testing) is altering the tradition of secrecy.³ The relative ease with which it is now possible to discover the identity of a person's genetic parents, the open identification policy with regard to adoption, and the development of genetic testing for disorders have all dramatically influenced the development of human rights law in favor of the child's right to know the truth about his or her genetic makeup.⁴ A growing body of research, largely conducted in the adoption field, supports the argument that knowledge of one's genetic background is crucial to the development of a sense of identity or self.⁵ Despite the fact

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that the analogy of donor conception to adoption is somewhat controversial,⁶ the use of rights-based arguments to endorse the position that children conceived by donor sperm should have access to identifying information about their gamete donor has gained credence and is now a commonly expressed argument.⁷

The ability of donor-conceived children to access information about their genetic origins initially depends on their awareness of the nature of their conception.⁸ Without this knowledge, such children will assume that their "social" fathers are their genetic parents.⁹ Hence, the onus of revealing the manner of conception rests on the social parents, unless such information is disclosed by the state, such as through a birth certificate,¹⁰ or it is obvious that they cannot be the biological children of their social father.¹¹ Concerns

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have been expressed about low levels of parental disclosure.¹² A study conducted in 2002 indicated that as few as 5% of parents of donor-conceived children had told their near-adolescent children about their conception origins.¹³ Even that number may be high as reported disclosure rates are likely to be overestimated because some non-respondents do not participate due to privacy issues and fears of revealing their use of donor conception.¹⁴

The low rate of disclosure may change as the united Nations Committee on the Rights of the Child puts increasing pressure on national systems that withhold information about the identities of biological fathers from children born by donor conception.¹⁵ Although legislative changes removing donor anonymity may play a part in facilitating parental disclosure,¹⁶ a parental decision not to reveal the truth to a donor-conceived child is a complex family matter and therefore very difficult to regulate by law. Furthermore, in Europe, such intervention could arguably be construed as a violation of Article 8 of the European Convention on Human Rights (ECHR), which guarantees the right to privacy and family life, inter alia, subject to justifiable state intervention.¹⁷

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This Article argues that, although the data regarding open adoption appears promising, policy makers should be wary of a wholesale transfer of the analogous lessons from adoption policy to the world of donor insemination. Before embracing such a wholesale change in legal policies, this Article argues that there should be a careful assessment of the adoption analogy and examination of empirical evidence about children born through gamete donation in various countries. In order to reach this conclusion, Part II of this Article examines international jurisprudence regarding donor anonymity. Part III of this Article presents a comparative study of the policy regarding anonymous donation in France, Sweden, England, and the United States. Part IV then presents arguments for nondisclosure of donors, whereas Part V discusses the arguments for disclosure. Finally, Part VI recommends a nuanced approach to considering the varied interests and rights of all family members that gives adequate weight to the collective family interests and rights of all parties, including those of the would-be parents and sperm donor.¹⁸

II. INTERNATIONAL JURISPRUDENCE: CHILD'S BEST INTERESTS?

The United Nations Committee on the Rights of the Child and the European Court of Human Rights are two of the international bodies concerned with producing guidelines and enforcing international laws regarding right to know one's origins. The United Nations Committee on the Rights of the Child is in charge of monitoring the enforcement of the United Nations Convention on the Rights of the Child (CRC),¹⁹ while the European Court of Human Rights is in charge of reviewing national decisions based on the ECHR.²⁰ This Part of the Article focuses on the jurisprudence surrounding the interpretation of the CRC and the ECHR, and how those interpretations have influenced European developments.

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A. Interpretation of the CRC

In 1989, the CRC was drafted as the first legally binding international instrument to incorporate the full range of human rights—civil, cultural, economic, political, and social—to protect children (defined as persons under the age of eighteen).²¹ By ratifying the CRC, States Parties commit themselves to protecting and ensuring children's rights and developing actions and policies to promote the best interests of the child. However, none of the articles in the CRC specifically promote a child's right to knowledge of his or her origins.²²

The united Nations established the Committee on the Rights of the Child to monitor the rights granted by the CRC, but failed to provide the Committee with enforcement powers and, further, there is no mechanism for individual petition under the CRC.²³

Article 7 of the CRC states:

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.²⁴

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The Committee has interpreted Article 7 as granting a child's right to knowledge of his or her origins.²⁵ Further, it has consistently criticized nations that do not allow for such a right or that allow mothers to give birth anonymously, as in France,²⁶ and made recommendations to contracting states Parties regarding incomplete national enforcement of the child's right to know his or her origins.²⁷ However, national authorities have a degree of discretion, provided they do not give higher priority to parental rights than children's rights and do not "diverge in their interpretations of the scope and degree of the duties imposed by [the CRC]."²⁸

In the context of the right to know, the reference to parents could indicate a right to know one's biological parents since it is possible to interpret Article 7 broadly so that the term "parents" includes not only social or legal parents, but also biological and...