What do We Tell the Children?

• Author: Ellen Waldman
• Position: Professor of Law, Thomas Jefferson School of Law.
• Pages: 517-561

Many thanks go to Chris Sove for his diligent research assistance, and to the Thomas Jefferson School of Law for financial support. As always, my daughter Aviva spurs me to think more and harder about the nature of family in the post-ART era.

Page 517

Assisted reproductive technologies (ART) now offer multiple pathways to parenthood for infertile heterosexuals, gay and lesbian couples, and singletons of varying sexual preferences. Adoption once provided the only recourse for family-seeking individuals who were biologically unable or socially ill-positioned to conceive children. Today, donor insemination, egg donation, and surrogacy offer alternative routes to family life, creating biological linkages that adoption bypasses. For this reason (and others), the number of ART families is growing.¹

For some, the explosion of ART-inspired families is cause for celebration; for others, it signals the subversion of important social values.²But regardless of whether one embraces or reviles the trend, the proliferation of nontraditional baby-making poses a multitude of questions. One of the most vexing involves the ethics of disclosure. What do we tell the children? What are they ethically or legally entitled to know? How might disclosure affect other ART participants? And who is to make these difficult decisions-the parents or the state?

In my house, the question of disclosure arose early. I am unmarried, and my daughter's biological father is known to me by a number only. His twenty-page profile (housed in a file reserved for "special" things) protects his desire for anonymity, yet is full of intriguing facts: a recent college Page 518 graduate at the time of donation, he summered as an animal trainer, double majored in theoretical math and comparative literature, and professed a liking for spicy food and pistachios. When questioned about goals, he said that he was opposed to multi-tasking as a state of being, preferring instead to do whatever he is doing "all the way" and then "relax all the way." I like to imagine him as tall and lithe and a bit abstract, making his way at his own pace, as my daughter seems to do-already very much her own person in her own abstract, determinedly unique way.

For her first two years, her dadless state provoked no queries. Was not a mom-and a doting nanny-bounty enough? But, within a week of starting preschool, afternoon pick-up presented a steadily growing gaggle of two- and three-year-olds pointing to my daughter and asking, "Why doesn't she have a dad?" And so, maneuvering within the Disney-inspired imaginations of the toddler-set, I sought to craft an explanation of a generous stranger who gave my daughter and me a gift we can never repay.

For singletons and gay couples, the stark facts of biology render the question of disclosure moot. Inevitably, a child will ask, "Where did the sperm or egg came from?" and there is little incentive to lie. For married heterosexual couples the issue is more complex. Continued stigma surrounding infertility, concerns about a child's "identity confusion,"³ and worries that disclosure will impair bonding between the nonbiologically linked parent and offspring lead many couples to keep the use of donor gametes secret.⁴ This secret-keeping reinforces existing policies of anonymous donation that signal to adoptive parents and donors alike that the act of donation is a "one-shot deal" establishing no enduring bonds or connections. It views ART participants as atomistic market actors whose interactions should be carefully monitored to ensure limited involvement beyond the mechanical mixing of gametes.

Today, a growing grassroots movement is questioning this operational premise. The children of sperm and egg donation have begun agitating for Page 519 more open policies regarding donor identity, just as adoptees began pushing for more open adoption policies in the late 1970s.⁵ Countries in Europe and provinces in both Australia and New Zealand have moved toward open-donation policies⁶ and many contend that the United States should follow suit.⁷ Arguing that information about origin is every child's legal and moral right, these groups are urging a shift from anonymous to mandatory open donation.⁸

Central to this claim is the assumption that existing policies disadvantage ART's "children of choice."⁹ Advocates for open donation purport to speak on behalf of donor-gamete children and cloak their call for legal reform in the rhetoric of the children's "best interests."¹⁰ However, before following international trends toward open donation in third-party assisted reproduction, it is important to examine current data on ART children in both open and closed donation settings. Policy makers should look closely at the data on donor offspring for clues as to how these children are doing. And, before decisions affecting generations of donor insemination (DI) children can be made, a number of questions must be answered. Is closed donation exacting a psychological cost on ART progeny? Does clear data establish the superiority of open systems, or are Page 520 the benefits of open systems exaggerated by advocacy groups who speak for smaller numbers than their vocal advocacy efforts imply? Additionally, should lawmakers take a broad view of the ART kinship unit and ask how policy shifts would affect other ART participants, namely donors and adoptive parents?

Advocates for change in gamete-donation policies draw heavily on developments in the adoption context that they contend establish the superiority of open policies over more buttoned-up approaches.¹¹ For that reason, this Article begins with the story of how evolving conceptions of adoption and the best interests of the adopted child led to dramatic changes in the way adoption records and birth parent anonymity are handled. The next section examines the analogies between adopted children and the children of ART to determine whether the risk/benefit calculus that led adoption professionals toward more open practices translates to the ART context. This part surveys the literature on families of gamete donation in an effort to determine whether anonymous donation appears to be harming donor offspring and whether open donation would offer a more therapeutic alternative. This part also broadens perspectives by examining the experience of countries that have legally banned or strongly discouraged anonymous donation, looking at its effect on adoptive parents, donors, and children. Finally, this Article offers some predictions and recommendations regarding how we should address this question in the United States, and how we can craft policies that preserve ART's capacity to fulfill the dreams of family-seeking adults, while maximizing the wellbeing and healthy functioning of donor offspring.

I Changes in Adoption Policies: From Secrecy to Openness

For the greater part of the last century, adoption records were sealed to prevent access to birth parents, adoptive parents, adult adoptees, and the general public.¹² Birth parents were kept ignorant about the whereabouts Page 521 and welfare of their birth children, and adoptive parents and children were similarly walled off from knowledge about birth parents.¹³ This penchant for secrecy reflected attitudes about single mothers, adopted children, and the meaning of adoption as a social practice.¹⁴

Although perennially stigmatized in American thinking as unprincipled and sexually wanton, single mothers in the post-World War II era came to be associated with the taint of mental dysfunction.¹⁵ In the late 1940s and 1950s, psychological theorizing began to attribute out-of-wedlock births to the instability and emotional volatility of the mother.¹⁶ Pregnancy in a single woman was thought to represent the presence of a "significant pathology"¹⁷ that would doom the child to a psychologically damaging upbringing. As one influential psychiatrist, Leontine Young, wrote in 1945, "All these girls, unhappy and driven by unconscious needs, had blindly sought a way out of their emotional dilemma by having an out-of- Page 522 wedlock child . . . . None of these violent neurotic conflicts are helpful ingredients in creating a good mother."¹⁸

Adoption came to be seen as a good solution for birth parent and illegitimate child alike. Given the obvious mental impairment of the birth mother, the social stigma surrounding bastardy, and the availability of "normal" adoptive parents, adoption seemed the perfect remedy for an otherwise unsavory situation.¹⁹ Additionally, inclinations toward a nurture rather than nature theory of human behavior led child psychologists and social workers to view adoption as a way for children with a "bad start" to begin anew.²⁰ Unburdened by the discoveries of our genomic era, adoption professionals were confident that adoption would seamlessly transplant newborns into adoptive families, one family entirely displacing and eradicating the other.²¹ Emphasis was placed on matching children to adoptive parents by appearance, interests, and apparent personality traits with the expectation that the fact of adoption could be papered over by particularly skilled pairing.²²

Secrecy and the sealing of records was thought important to protect bonding between parents and their adopted children, the children's psychological development, and the privacy of the birth mother. Mental health professionals were concerned that if records were left open and identities revealed, birth mothers might intrude upon...