Revealing your sources: the case for non-anonymous gamete donation.

• Author: Dennison, Michelle

1. INTRODUCTION: THE END OF ANONYMITY? II. THE EVOLUTION OF ATTITUDES TOWARDS THE USE OF DONOR GAMETES III. CURRENT REGULATION OF GAMETE DONOR ANONYMITY A. Current Anonymity Regulation Abroad B. Anonymity Regulation in the United States IV. ANONYMITY: TRULY THE BEST CHOICE FOR EVERYONE INVOLVED? A. Donor-Conceived Children's Interests in Non-Anonymous Gamete Donation and the Ability to Access Donor Information 1. Health Concerns 2. Consanguinity Concerns 3. Psychological Concerns B. Parental Concerns About Non-Anonymous Gamete Donation C. Donor Concerns About Non-Anonymous Gamete Donation 1. Donor's Diminished Expectation of Privacy: Johnson and Beyond 2. Contractual Protection of Donor Privacy IV. PROPOSED LEGISLATION V. CONCLUDING THOUGHTS I. INTRODUCTION: THE END OF ANONYMITY?

   In late 2005, a very enterprising teenager sent shockwaves through the sperm bank world when he tracked down his biological father using a mail-order DNA kit and a couple of online search engines. (1) His biological father was a sperm donor who had contracted with the fertility clinic to remain anonymous. (2) As such, the teen had access to very little information about him, only the date and place of the man's birth. (3) But the teen wasn't deterred. He took a swab of the inside of his cheek, popped it into a vial and mailed it off to FamilyTreeDNA.com, an online genealogy DNA-testing service, which compared his DNA to other DNA samples on file. The testing located two men with Y chromosomes similar to his own. Neither man was his father, but because the male Y chromosome is passed from father to son virtually unchanged, the similarities between their Y chromosomes suggested that all three shared the same father, grandfather or great-grandfather. More importantly, the two men had the same surname. The teen then turned to Omnitrace.com, where he was able to purchase a list of all the people who had been born in the same place and on the same day as his donor. One man on the list had the same surname as the two men from the DNA registry, and within 10 days the teen had made contact with his biological father. (4)

   What happened next between the teen and his donor dad wasn't made public, but his story is illustrative of the major questions facing anonymous gamete donation today. (5) Largely self-regulating fertility clinics in the United States have long operated under the paternalistic assumption that preserving the anonymity of gamete donors is best for all parties involved in the process. (6) Recipients of donated gametes, especially heterosexual couples, may want to present the donor-conceived child to the world as their own biological child, avoid any erosion of their parental rights, and protect the child from any potential stigmatization that might come from revealing the child's true biological origins. (7) Gamete donors, many of them young and not necessarily motivated out of pure altruism, (8) may want to avoid the imposition of parental responsibilities or the potential risk of a resulting donor child derailing their future. (9) But despite these concerns, is anonymity truly the best choice for all involved? A confluence of recent events, including technological advances making DNA tracing more accessible, a 2000 California Court of Appeals decision that weakened donor privacy rights, (10) an increase in vocal donor-conceived children, and the trend towards openness in adoption laws, suggests that there is a growing need to reexamine this policy of anonymity.

   This article argues that both legislating the end of anonymous gamete donation and allowing current children of anonymous gamete donation the ability to access identifying information about their donors is in the best interests of all parties involved in the donation process. Recipient-parents (11) and donor-conceived children will benefit from having increased access to their donor's health information. Records access, including access to a donor's identifying information, will help donor-conceived children avoid potential incest and what is sometimes termed in adoption cases "genealogical bewilderment." Finally, banning anonymous donation will give potential gamete donors the ability to make a truly informed decision before donating, because, as evidenced by the teenager and his DNA kit, it is nearly impossible for anonymity contracts to truly guarantee that anonymity.

   Part I of this article begins with a discussion of why the use of donor gametes for reproduction has historically been enveloped in such secrecy, and how that secrecy has gradually begun to erode. Part II looks at the movement towards non-anonymous donation in other countries and examines how this movement has taken hold in this country. Part III considers the interests of the donor-conceived children, the recipient-parents, and the donors. It makes the comparison between donor-conceived children and adoptees, and also discusses how a donor's right to privacy is potentially diminished by the very act of donating. The article will conclude with a proposal for legislation that would prevent future donor anonymity, mandate better record-keeping, and extend the "for good cause" standard that many states currently apply to adopted children in records access cases to donor-conceived children.

   One important note: there are essentially two steps involved in the donor conceived child's ability to discover the identity of his or her gamete donor. (12) The first is telling the child the circumstances surrounding the child's conception. (13) The second is in the child's ability to access information about the gamete donor, including donor-identifying information. (14) While the second step is clearly dependent on the first--donor-conceived children must first be told where they came from before they can proceed to find out who they came from--this first step of initial disclosure about conception is, in my opinion, a decision that should be left only to the parents of the child. (15) Although disclosure to the child is a highly recommended part of the gamete donation process, (16) statutorily requiring a parent to disclose information about the child's conception would open the door for additional infringements on parental privacy rights, which have always been heavily protected by the states. (17) Therefore, despite its obvious importance to the policy changes proposed in this article, the topic of initial disclosure to the child is outside the scope of this discussion. But because parents are increasingly encouraged to make this initial disclosure to their donor-conceived children, the assumption is made that disclosure is or will soon be the norm, and this article will instead focus on the second issue presented: the donor-conceived child's right to access identifying information about his or her gamete donor.

2. THE EVOLUTION OF ATTITUDES TOWARDS THE USE OF DONOR GAMETES

   The use of donor gametes (18) for conception has been surrounded by secrecy and anonymity from the very beginning. (19) One of the first recorded instances of donor insemination (DI), the use of donated sperm for fertilization, is perhaps an extreme example:

   Dr. William Pancoast ... while teaching a class at Jefferson Medical College in 1884, discussed a situation in which the male in a couple was discovered to be azoospermic and the female was found to be perfectly capable of bearing children. The students in the class suggested that a "hired man" be called in to solve the problem. Dr. Pancoast then took a semen sample from the "best looking member of the class" and inseminated the woman without her consent and while she was anaesthetized. The doctor later reluctantly told the husband and was relieved to find he approved of the doctor's actions, but suggested that his wife not be told. (20)

   All the participants involved in the process of gamete donation initially seemed to have something they wanted to hide: donors did not want to be revealed to the parents or to the child; parents did not want to reveal the use of a donor to the child or to anyone else beyond their doctor; and, as evidenced by Dr. Pancoast, sometimes even the doctor did not even want to reveal the use of donor gametes to the parents. (21)

   The secrecy associated with the use of donor gametes stems perhaps from the social attitudes of the late 19th and early to mid 20th centuries. (22) At the time, infertility itself was stigmatized as a sort of personal failure, and use of any kind of assisted reproductive technology (ART) for conception was viewed with extreme skepticism. (23) The use of donated sperm in the DI process was particularly subject to controversy. The practice was unequivocally condemned by both the Catholic Church and the Church of England, and it stirred up great alarm in contemporary philosophers and moralists. (24) A professor in Virginia summed up his rather vehement opposition in a 1948 article that called for the end of DI altogether: "[o]ur social order is built on the nucleus of the family growing from the marriage of one man and one woman for life to the exclusion of all others. Why should a society built on such foundations ... [be] weakened by recognition of a practice which is unnecessary and to say the least, legally and socially problematical?" (25)

   One of the reasons the use of donated sperm caused so much controversy was that it was seen as tantamount to adultery. (26) This was reflected in a divorce case that came before the Ontario courts in 1921, in which the wife, in an attempt to avoid charges of adultery, claimed to have undergone artificial insemination with donor sperm without her husband's consent. (27) The presiding judge chose not to believe the wife's claim, but stated that even if she truly had become pregnant via artificial insemination, she still would have been found guilty of adultery. (28) Although the final decision did not require it, the judge felt the need to include in the ruling his opinion of DI, stating that...