No Secrets: Openness and Donor-Conceived 'Half-Siblings

• Author: Naomi Cahn
• Position: Is the John Theodore Fey Research Professor of Law, George Washington University Law School
• Pages: 313-343

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NO SECRETS: OPENNESS AND DONOR-CONCEIVED “ HALF-SIBLINGS ”

NAOMI CAHN^*

I. INTRODUCTION

The worlds of adoption and assisted reproductive technology (ART)¹

have much in common—and they are very different. Both adoption and ART are means for creating families in which the child is not genetically related to one or both parents, facilitating the formation of alternative family forms. Similarly, both must balance the potentially competing rights and interests of the parties involved, whether they are gamete providers, recipients, and donor-conceived offspring; or birthparents, adoptive parents, and adopted persons. Both have been cloaked in secrecy (although ART has been subject to even more secrecy and much less regulation than has adoption).²In addition, objections to increased disclosure about a child‘s biological origins have used comparable language in each area.³

Copyright © 2011, Naomi Cahn.

* Naomi Cahn is the John Theodore Fey Research Professor of Law, George Washington University Law School. I thank the organizers of the Wells conference; the law review; and Mary Kate Hunter, Amy Ramsey, and Alisa Yasin for research assistance. Thanks to Wendy Kramer for her leadership on these issues.

¹ART is a general term that refers to a variety of methods for achieving pregnancy by assisted means. See CTRS. FOR DISEASE CONTROL & PREVENTION, U.S. DEP‘T OF HEALTH &

HUMAN SERVS., 2008 ASSISTED REPRODUCTIVE TECHNOLOGY SUCCESS RATES: NATIONAL

SUMMARY AND FERTILITY CLINIC REPORTS 3–4 (2010), available at http://www.cdc.gov

/art/ART2008/PDF/ART_2008_Full.pdf. ART includes fertility treatments that involve some form of outside intervention, ranging from the placement of fertilized eggs from the gametes of the intended parents into the mother‘s uterus (in vitro fertilization/IVF) to using sperm/egg (gamete) and embryos created by others. Although the CDC does not include sperm donation, id., this paper will include the practice because of its focus on third party reproduction, that is, ART involving the exchange of gametes. A note on language, which is somewhat contested in this area: gamete exchanges include the sale or gift of sperm, eggs, and embryos, even though they are typically referred to as ―donor‖ gametes or embryos.

²See NAOMI CAHN, TEST TUBE FAMILIES: WHY THE FERTILITY MARKET NEEDS LEGAL

REGULATION 73–74 (2009) [hereinafter CAHN, TEST TUBE FAMILIES].
³See id. at 77, 116.

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While adoption does not necessarily set out model policies for the regulation of ART, adoption does offer some templates for establishing policies for families formed outside of the traditional nuclear biological family structure. Modern approaches to adoption began to develop in the United States in the mid-nineteenth century, while modern approaches to ART began to develop in the mid-twentieth century. Accordingly, the adoption world has struggled for a longer time with the equivalence of families formed through the intervention of third parties and families formed without third party intervention, as well as with managing the relationships between adoptive families, the adopted individual, and the birth parents.⁴Adoption now provides more explicit acknowledgement of the complexities of adoptive families as well as the complexities of the relationships between members of the adoption process.⁵As this has occurred, the adoption world has moved towards more ―openness‖ ⁶ in

various contexts, including: (1) adoption with contact, whereby, the birthparents meet and then maintain some ongoing (albeit limited) connection to the adoptive family and (2) records availability, with virtually all states allowing for some degree of disclosure to adopted individuals with respect to their original birth certificates.⁷Indeed,

⁴See, e.g., Naomi Cahn, Perfect Substitutes or the Real Thing?, 52 DUKE L.J. 1077 (2003) [hereinafter Cahn, Perfect Substitutes]. To be sure, many adoptions occur within biological families, such as through stepparent or second-parent adoptions. See, e.g., Christine Metteer Lorillard, Informed Choices and Uniform Decisions: Adopting the ABA’s Self-Enforcing Administrative Model to Ensure Successful Surrogacy Arrangements, 16 CARDOZO J.L. & GENDER 237, 244 (2010).

⁵See CAHN, TEST TUBE FAMILIES, supra note 2, at 73–79 (charting how the

development of adoption laws in America reflects the development of more complex and varied realities).

⁶The language in this area is quite complex. ―Openness‖ itself implies such a broad spectrum of possibilities that it needs further definition. Moreover, use of the term ―donor‖ suggests that gametes involve altruistic gifts when, in fact, they typically involve financial compensation. Or consider the terms ―natural parents‖ verse ―birth parents‖ in the adoption context.

⁷Access to Adoption Records: Summary of State Laws, CHILD WELFARE INFORMATION

GATEWAY (Dep‘t of Health & Human Servs., Washington, D.C.), June 2009, at 1–6,

available at http://www.childwelfare.gov/systemwide/laws_policies/statutes/infoaccessap all.pdf; Madelyn Freundlich, For the Records: Restoring a Legal Right for Adult Adoptees, 2007 EVAN B. DONALDSON ADOPTION INST. 1, available at http://www.adoptioninstitute.

org/publications/2007_ 11_For_Records.pdf; Jeanne A. Howard et al., For the Records II: An Examination of the History and Impact of Adult Adoptee Access to Original Birth

(continued)

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openness provides one area of overlap, and adoption can provide some important insights for ART. The ART world is quite distant from the adoption world when it comes to openness. Donors often do not know whether their gametes have resulted in any offspring, and no state has provided for disclosure of the identity of a donor.⁸

This article examines various aspects of openness in adoption and the ART context as a basis for exploring the importance of allowing donor-conceived half-siblings to find one another. The relatively closed nature of the ART system, in which children may not know of their origins, donors and recipients may never meet, and the possibility that offspring will find half-siblings is realized on an ad hoc basis, could be profoundly affected by lessons from the legal regulation of adoption, notwithstanding the differences between the two means of creating families. At another Wells conference five years ago, Professor Ellen Waldman carefully considered similar issues of privacy and openness and concluded: ―Data on donor offspring suggests that openness in families should be encouraged, but no crisis in donor offspring welfare exists that requires urgent repair. Moreover, the question remains whether law is the best mechanism for changing the way third-party conception is handled within the intimate family sphere.‖⁹As more studies of donor offspring emerge, and as technological developments continue to overshadow legal developments,¹⁰

there are issues that the law can and should productively address. Legal intervention provides the most secure means for ensuring basic protections of both privacy and limited disclosure. Moreover, new studies show how donor offspring are affected by their status and by finding others who share the same donor—―donor siblings.‖¹¹

Certificates, 2010 EVAN B. DONALDSON ADOPTION INST. 1, available at http://www.adop

tion institute.org/publications/7_14_2010_ForTheRecordsII.pdf.⁸See, e.g., CAHN, TEST TUBE FAMILIES, supra note 2, at 116.

⁹Ellen Waldman, What Do We Tell the Children?, 35 CAP. U. L. REV. 517, 560 (2006); see also Lynn Marie Kohm, What’s My Place in This World? A Response to Professor Ellen Waldman’s What Do We Tell the Children?, 35 CAP. U. L. REV. 563 (2006) (―This article responds to Professor Ellen Waldman‘s suggestions by seeking to listen to children themselves to discern their deepest needs.‖).

¹⁰See Gaia Bernstein, The Role of Diffusion Characteristics in Formulating a General Theory of Law and Technology, 8 MINN. J.L. SCI. & TECH. 623 (2007); Gaia Bernstein, The Socio-Legal Acceptance of New Technologies: A Close Look at Artificial Insemination, 77 WASH. L. REV. 1035 (2002) [hereinafter Bernstein, The Socio-Legal Acceptance of New Technology].

¹¹See CAHN, TEST TUBE FAMILIES, supra note 2, at 126.

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This article recommends that, in the ART world, openness should mean not just telling a child that she is donor-conceived and allowing her to access records concerning her donor but also should include providing information about half-siblings and the opportunity to connect. The article explores this paradigm-shifting¹²change in the meaning of disclosure in the ART world, showing how legal regulation can ensure respect for the interests of all involved. It first sets out a typology of openness in the adoption world before turning to a comparison of openness in the adoption and ART worlds. Next, it explores the development of connections between donor-conceived families, examining studies of these connections. Finally, it suggests how the law can (and why it should) facilitate these connections both between donors and their genetically related offspring and between the genetically related offspring themselves.

II. OPENNESS IN ADOPTION

Openness in adoption refers to several practices: first, the adopted adult‘s right to obtain information about her original birth certificate; second, the information provided to prospective adoptive parents about the child and her origins; and third, the ability for some openness, such as an exchange of information or contact, to exist between the biological parents and the new adoptive family.¹³Openness, thus, covers the adopted adult‘s interest in learning about her biological family as well as the interests of the adults involved in learning more about each other and...