What's my Place in this World?

• Author: Lynne Marie Kohm
• Position: John Brown McCarty Professor of Family Law, Regent University; J.D. Syracuse, B.A. Albany.
• Pages: 563-587

Page 563

This Article was written upon invitation after my presentation at the Wells Conference, Capital University Law & Adoption Symposium, sponsored by the National Center for Adoption Law & Policy. It was a privilege to be a part of this fabulous event. Special thanks are extended to Whitney Blake for her research and efforts, which were invaluable to this Article.

A Response to Professor Ellen Waldman's What Do We Tell the Children?

A child born from a created embryo, assuming she learns the truth about her origins (as she has a right to do) will know that the sources of the gametes who produced her did not ever have a human connection or a relationship with each other. Her existence may feel like a cosmic accident, like she was not truly meant to exist. Thus children born via embryo creation may have a more difficult time developing a sense of identity and a conviction that they have a place in the world.¹

Ask a child what he wants to know about his parents, and himself, and he'll likely respond, according to his age, with something having to do with his search for meaning in life. A child, particularly one approaching young adulthood, wants to know what his origins are and what they mean for him and his future.² The debate presented by this Wells Conference panel asked what children of assisted reproductive techniques (ART) should be told. This Article responds to Professor Ellen Waldman's suggestions³ by seeking to listen to children themselves to discern their deepest needs, above all adult voices. Page 564

Often a young person will bury himself in music in search for meaning, because music can intensely communicate confused feelings.⁴One songwriter and artist has stated this profound hunger for purpose and meaning in a powerful way in his work entitled "Place in This World."⁵

Professor Waldman opened her presentation with anecdotal evidence from her own daughter's experience, and from that we gleaned that it is clear that kids born from ART need not only facts, but also knowledge of ART in its proper perspective. They require information about the meaning of assisted reproduction and its relevance to their own lives and the lives of others.⁶ Professor Waldman thoroughly examined the international legal backdrop of encouraging openness by adoptive parents in communicating with their children that their origins have resulted from Page 565 ART.⁷ Noting the potential analogy between traditional adoption laws and possible policies for ART offspring,⁸ she concluded that more research is necessary.⁹

When we consider adoption of children from the ART process, we essentially combine two social problems into one even more delicate concern. Adoption is a solution that solves the problem of a deserving child in need of parents and a family, rather than the inverse of finding a child for a family.¹⁰ When discussing an embryo in need of parents and a Page 566 family, the best interests of the embryo are at stake.¹¹ "The question here is whether or not someone should be advocating for the rights of children who are not yet born or conceived, and whether we can know-even prior to conception-whether a child will be psychologically harmed as a result of the circumstances of its conception or birth."¹²

The voices surrounding this discussion are many, and the adult voices¹³ particularly are so loud that they tend to drown out the voices of the children involved. This Article intentionally attempts to block out all other voices and to listen to the children-to gain a child's perspective regarding his desire to find a place in the world. It will consider what a child might want to know, what a child ought to be able to know if he so chooses, what is in a child's best interests, and how all that is best protected by laws that do not prohibit information from children, as well as by parental responsibilities supported by agency integrity. Page 567

Part I examines the best interests of the child and what that entails, as well as the context of family framework. Part II points out express statutory rules that prohibit children from discovering their origins and demonstrates that these laws are clearly not fostering any child's best interests. Part III demonstrates that the best interests of the embryo are preserved through parental and agency responsibility. Using the "Snowflake" example and the personalization of the embryo, this Article concludes that every child's best interests can only be properly and appropriately upheld by responsible parents making responsible choices based on what is absolutely best for the child of ART.

Wielding the profound power of ART must be accompanied by great responsibility on the part of participating adults. All the adults involved in a child resulting from ART ought to hold dear the best interests of the child they assist in creating that each should be willing to sacrifice to protect the best interests of that child. This requires some sacrifice of donors' privacy, possible sacrifice of agencies' dollars, and great sacrifice of parents in full age-appropriate honesty.¹⁴ Somehow, protecting the child's interests above one's own is the most (and possibly only truly) satisfying state of being for any adult involved in ART-not only to allow, but also to encourage that child to find his place in this world.

I Best Interests of the Child

The legal standard applicable when children are involved is the best interests of the child.¹⁵ A recent report from a thirty-member multiparty commission of the French National Assembly highlighted the importance of this standard in the context of the law's duty to set norms in the midst of Page 568 family law changes.¹⁶ "Children represent the future of society. They 'must not suffer from conditions imposed upon them by adults.' 'The best interests of the child must prevail over adult freedoms . . . even including the lifestyle choices of parents.'"¹⁷

For the best interests standard to prevail in the ART context, every adult individual involved with an ART child must have an ongoing duty to protect that child's best interests.¹⁸ Until children reach the age of majority and gain rights, it is up to the adults around them to preserve the best interests of children by balancing adult rights with responsibilities to the children. Frequently, they must place those responsibilities above their own rights as adults.¹⁹ The balance of the rights scale is tipped when protection owed to a child outweighs the rights of the adult, as this is the situation when the child's psychological health is of concern.²⁰

The child's interests have always been the focus of adoption in America.²¹ The objectives of embryo adoption are similar-to find a family for a child who needs one, with the best interests of the child clearly controlling.²² The child's interest ought to be placed at the core of ART.²³ Page 569

Susan Lewis Cooper and Ellen Sarasohn Glazer, leading therapists in the field of assisted reproduction,²⁴ discussed in depth this dilemma of protecting the best interests of children in the context of an adult's right to reproduce.²⁵ They emphasized that a child's best interests are served by knowing her identity.²⁶

In embryo adoption, it is . . . tempting not to tell; the secret is easily hidden. However, we believe that children who were adopted, regardless of whether the adoption took place at the embryo stage or after birth, deserve to know the truth about themselves. Furthermore they deserve to know facts about their genetic history, facts that will help in their development and maturation.²⁷

Children of ART are likely to seek the truth at some point in their lives.²⁸ They might seek to know their genetic parents, their heritage, other ancestors, where they came from, and even their family tree.²⁹ "[T]his yearning appears to be of fundamental importance for some adoptees, and seeking their genetic origins may be instrumental in helping them solidify their identity. The information helps them feel complete."³⁰ Children will likely want to know-and ought to know-about other family members, such as who their siblings are.³¹ Page 570

Kids are naturally curious-they want to know as much as they can about themselves, their birth, their childhood, their past, and their future.³²They discern who to trust by perceiving adults' responses to their needs.³³Therefore, parents become the key source and holder of a duty not to keep this kind of information from their kids.³⁴

All persons have a moral right to information that concerns themselves and the circumstances of their birth. The truth does not belong to the parents to withhold-it is the child's birthright. Parents must develop the wisdom and courage to squarely face the whole issue. It is their responsibility to tell the truth, no matter how difficult or painful that task may be.³⁵

Truth disclosing, not secrecy, should occur on the part of all adults involved in the ART process, placing the child's best interests as paramount. The impact of secrecy is dramatic.³⁶ It has consequences for adults involved,³⁷ and profoundly affects children born from embryo adoption.³⁸ In fact, some medical ethicists argue that "[c]hildren created by embryo adoption may see themselves as 'spare' or 'surplus' goods and may indeed have the same need for information-for access to their Page 571 story-as other adoptees, even though they have not been abandoned at birth."³⁹

Two other legal scholars have gone before me in blocking out all other voices to hear the voices of children of ART. Naomi Cahn argued that children deserve access to information about their biological past both when the donor's identity is known to the biological parent and when it is unknown.⁴⁰ Her arguments for disclosure rest on public policy considerations that recognize the potential...