Anonymously Provided Sperm and the Constitution

By Byrn, Mary Patricia; Ireland, Rebecca | Columbia Journal of Gender and Law, Spring 2012 | Go to article overview

Anonymously Provided Sperm and the Constitution


Byrn, Mary Patricia, Ireland, Rebecca, Columbia Journal of Gender and Law


INTRODUCTION

Obtaining sperm to use in Assisted Reproductive Technology ("ART") is relatively simple. (1) Hospitals, clinics, and sperm banks throughout the United States are in the business of selling sperm from literally thousands of men. (2) This does not mean, however, that becoming a sperm provider is easy. When a man decides to sell his sperm, he must first undergo an involved screening process to test for genetically inheritable and infectious diseases that could be transmitted through his sperm. (3) The screening process is purposefully rigorous, and sperm banks boast that the effect of these stringent guidelines is to eliminate ninety-nine percent of potential providers. (4) Once a man is approved to provide sperm, he contracts with the sperm bank to supply sperm for a specified period of time and designates himself as either an anonymous or open-identity sperm provider. (5)

Open-identity sperm providers contractually consent to be contacted by any offspring that result from their sperm. Contact protocols vary between sperm banks but, in general, when a provider-conceived child turns eighteen, he or she can contact the sperm bank and obtain the identity of and contact information for the sperm provider. (6) When a man chooses to provide his sperm anonymously, however, both the sperm provider and intended parents (7) agree to complete anonymity--that is, the sperm provider can never know the parents or any offspring, and vice versa. (8) Anonymous sperm providers make up the vast majority of men selling sperm. (9)

Several commentators have argued that the use of anonymously provided sperm causes significant harm to provider-conceived children. (10) There are four main concerns advanced by these commentators. First, there is concern that provider-conceived children suffer emotional and psychological harm. (11) These commentators assert that many provider-conceived children experience an identity crisis as the result of not knowing "where [they] came from." (12) Second, commentators assert that the use of anonymously provided sperm violates children's right to know their genetic parents. (13) This argument suggests that the children--and not the parents or sperm providers--should decide whether there will be any contact between the sperm provider and his offspring. Third, there is concern that the use of anonymously provided sperm will lead to unintended romantic relationships between genetic half-siblings. Here, commentators point to the lack of regulatory limits on the number of offspring that can be conceived using a given provider's sperm as causing an increased chance of incest between provider-conceived offspring. (14) Finally, commentators are concerned that provider-conceived offspring are unable to adequately monitor their health and treat medical conditions because they are denied access to genetic information about their sperm provider. (15)

In an effort to address these concerns, commentators have made two recommendations. First, they have called for a ban on anonymously provided sperm. (16) They argue that only sperm from open-identity providers should be available for use in ART. Second, some of these commentators have also called for mandatory disclosure to inform provider-conceived children that they were conceived with purchased sperm. (17)

This article takes issue with both of these proposed regulations for two reasons. First, a ban on anonymously provided sperm and a requirement that parents inform their provider-conceived children of the details of their conception implicate constitutionally guaranteed fundamental rights. For such legislation to be constitutional, it would presuppose that the fundamental rights to procreate and to raise one's child are less robust for persons who conceive via ART than they are for persons who conceive through sexual reproduction. Currently, commentators advocating for these regulations implicitly presume that persons who conceive via ART have lesser rights. …

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