Forgotten Parties: Shifting the Focus of Donor Conception to Donor-conceived Persons Through Reasonable Regulation

• Publication year: 2023

Forgotten Parties: Shifting the Focus of Donor Conception to Donor-Conceived Persons Through Reasonable Regulation

Tiffany D. Gardner

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Forgotten Parties: Shifting the Focus of Donor Conception to Donor-Conceived Persons Through Reasonable Regulation

Tiffany D. Gardner^*

I. Introduction

In an age in which information is at our fingertips with a few keystrokes, members of the fertility industry are increasingly confronting the reality that anonymous sperm and egg donation is no longer realistic—and has not been for some time.¹ With the advent of

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at-home commercial DNA testing, multiple generations are not only learning they were conceived through the use of reproductive material provided by third parties ("donors"² ) but also identifying those formerly anonymous donors.³ These revelations, and increasing advocacy by the people born of such donations (i.e., donor-conceived people) are changing the landscape of third-party reproduction around the world.⁴ But the United States lags behind in protecting the interests of donor-conceived people and, in some respects, donors and gamete recipients.

Donor-conceived people have long been the forgotten parties of third-party donor conception, despite the American Society for Reproductive Medicine's recognition that each person has a "fundamental interest in knowing their biological origins."⁵ While the

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fight for access to genetic information by the adoptee community has recently gained momentum and broader acceptance,⁶ discussions on behalf of similar interests for donor-conceived people are only beginning to garner mainstream attention.⁷ But the same question continues to arise: how can the rights and interests of gamete donors and legal parents be reconciled with the rights and interests of donor-conceived people when they appear, at times, to conflict? This Article will address those questions.

Part II of this Article traces the early history and legal treatment of third-party donor conception in the United States to today, examining how certain harmful practices came to exist and why they continue. Part II then contrasts the lack of regulations in the United States to the laws enacted in other democracies and developed countries before detailing the harms that result from the lack of regulation.

Part III proposes that, as the literal product of third-party donor conception, the interests of donor-conceived people must be considered from the outset of the process. Part III also looks to legislation recently enacted in Colorado, legislation proposed in California, and growing public attention to the concerns of donor-conceived people. It then recommends other states adopt the same or similar legal protections as those in Colorado to protect donor-conceived people and their families by regulating the donor gamete industry and protecting diverse family structures.

Part IV addresses some of the anticipated public policy criticisms and potential legal challenges to such regulation and provides rebuttals to those attacks.

II. Background

Today, for less than $100, we can spit into a tube and one month later stare at a color-coded world map detailing the geographic and ethnic origins of our ancestors. On another page is a seemingly endless list of the hundreds of distant cousins we never knew existed. With a quick hop over to social media, we can learn which restaurants these mysterious relatives frequent, their favorite movie, relationship status, and whether we bear some resemblance. A few more web searches later, we can

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possibly find an address for these members of our newly expanded family tree. And all of this became possible in fewer than twenty years.

Of course, this technological landscape was unimaginable during the formation of the donor gamete industry's earliest practices, under which secrecy and anonymity were identified as vital components. This section will explore why those practices developed and have largely continued, despite their detrimental impact on the people the industry creates.

A. America: The Birthplace of Modern Gamete Donation

America claims the first documented instance of sperm donation, which took place in a nineteenth-century Philadelphia medical facility.⁸ As the story goes, a healthy woman whose husband was diagnosed with azoospermia—a lack of sperm—was inseminated with sperm from a medical student. That sperm donor was chosen by the doctor based on his good looks. Upon discovering that his wife was pregnant, the husband requested his wife, who was inseminated while under anesthesia, never be informed about the use of donor sperm.⁹ Thus, sperm donation in America was quite literally born and bred amongst shame and secrecy.¹⁰

During the next century, the ensuing legal doctrines affecting third-party donor conception reinforced these beliefs. In 1954, an Illinois state court concluded that even if a husband consented to use of third-party donor sperm, the practice was "contrary to public policy and good morals, and considered adultery on the mother's part."¹¹ Some

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thirty years before this, a court in Canada reached the same conclusion, albeit in dicta.¹²

But even for early commentators who balked at the idea that using third-party donor sperm was the equivalent of adultery,¹³ the belief that secrecy and anonymity were vital components of the procedure remained because of the "novelty of the technique," which "would mean scandal or acute psychological pain for participants" in some communities.¹⁴ Thus, these commentators concluded that anonymity should be preserved for the "continued happiness and security of [the] donor, couple, doctor and child . . . ."¹⁵

In the years that followed, without legal structures to legitimate the families established through the process, the use of third-party donor sperm gave way to official medical practices to shield inseminating doctors from potential legal fallout.¹⁶ In general, this led to the

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inseminating doctor sending the couple to a new physician for the child's birth—one completely unaware that donor sperm was used in the conception. This practice ensured the inseminating doctor did not knowingly falsely swear to the child's paternity on the eventual birth certificate.¹⁷

Yet professionals remained divided on how to hold donors, recipients, and the donor-conceived person to their so-called "proper spheres."¹⁸ Some suggested the various roles, obligations, and consent be memorialized in "complex, signed, sealed, and fingerprinted bilateral agreements."¹⁹ Others recommended complete abandonment of maintaining any records, "premising security on the legal presumption favoring legitimacy, the physician client privilege, and donor and couple selection designed to avoid the litigious."²⁰

In terms of presumptive legitimacy, beginning with Georgia in 1968, the United States made progress defining heterosexual parentage rights and roles when using assisted reproduction technology, but those laws

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often hinge upon a woman undergoing artificial insemination with donor sperm with her husband's consent.²¹ In 1981, twenty-three states had laws providing for the legitimacy of a child born to heterosexual couples as a result of donor insemination, with nine of those statutes modeled on the Uniform Parentage Act (UPA),²² which will be discussed in further detail infra.²³

But these legal advancements notwithstanding, medical practitioners still sent heterosexual couples home with instructions to never think of the procedure again, which included never telling their child the truth about their genetic parentage.²⁴

B. Where We Are Today: A Multi-Billion Dollar Industry

The first commercial sperm bank opened in Minnesota in the 1970s.²⁵ Thereafter, seventeen commercial sperm banks operated across the United States in the 1980s, which led to the birth of an estimated 20,000 babies.²⁶ The number of sperm banks exploded by 1999, with more than

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100.²⁷ In 1984, egg donation was possible, and three years later, the Cleveland Clinic established the first egg donor program in the country.²⁸ Since then, the use of egg donation has steadily increased.²⁹

Today, approximately two dozen sperm banks operate in the United States with their ownership split amongst a handful of companies with large donation programs. The growth of large commercial sperm banks—and the disappearance of smaller programs—is traceable to the growing concern of potential HIV transmission through sperm donation in the 1980s,³⁰ which led to using quarantined frozen donor sperm (which is tested for infectious diseases³¹ ) as opposed to fresh specimens, making the donor insemination process more costly and complex.³² In 2015, an estimated 30,000—60,000 children were born as a result of sperm donation and more than 8,000 from egg donation in the multi-billion dollar gamete-donation industry.³³ Of course, without mandatory live-birth reporting, there is no way to know how many donor-conceived

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people are truly born each year.³⁴ But researchers estimate that from 2006 to 2017, more than 1.5 million women used donor sperm in the United States.³⁵

Despite shifting societal norms, increased use, and technological advancements, commercial gamete donation in the United States largely remains untouched by regulation or control. In contrast, in 1984, Sweden broke ground as the first country to ban anonymous sperm donation.³⁶ Today, Germany, Finland, Portugal, Sweden, the United Kingdom, New Zealand, the Netherlands, Austria, Norway, Switzerland, Ireland, Uruguay, Argentina, and the Australian states of Western Australia, South Australia, Victoria, and New South Wales all permit a donor-conceived person to identify the donor upon reaching the age of eighteen—or earlier in some countries.³⁷ Most recently, in 2022, France joined the growing list of countries to abolish anonymity, now requiring by law that donors consent to the disclosure of their identity when offspring turn...