Comparing the Rights of Adoptees and Donor-Conceived Offspring in States Granting Access to Original Birth Certificates and Adoption Records: An Equal Protection Analysis

By Sharp, Brittney N. | Ave Maria Law Review, Spring 2013 | Go to article overview

Comparing the Rights of Adoptees and Donor-Conceived Offspring in States Granting Access to Original Birth Certificates and Adoption Records: An Equal Protection Analysis


Sharp, Brittney N., Ave Maria Law Review


INTRODUCTION

Technological advancements in assisted human reproduction have created an entire infertility industry in the United States and abroad, and greatly increased demand for human eggs and sperm. After the birth of the first "test-tube baby" in 1978, (1) assisted reproduction has been commonly used to help couples overcome infertility struggles. Young and healthy men and women are recruited to sell their gametes for use in assisted reproduction while others make donations altruistically out of a desire to help others. It has been estimated that 100,000 young women have been recruited to sell their eggs to infertility clinics in the United States. (2) As an increasing number of individuals who are conceived through the use of donor gametes are reaching adulthood and seeking information about their genetic origins, debates concerning whether donation of human gametes should be made anonymously have surfaced. Some studies estimate that as many as 30,000 children are born each year in the United States as a result of anonymous sperm donation, and 5,300 from anonymous egg donation. (3) Additionally, the use of assisted reproduction to treat infertility has increased as the supply of adoptable children--especially healthy white infants--has decreased (4): "By 1988, only 3% of babies born to single white women were relinquished for adoption, compared to 19% before 1973." (5) Therefore, assisted reproduction has become "an alluring alternative to adoption." (6)

Assisted reproduction is largely unregulated in the United States, which is inconsistent with the majority of European countries that heavily regulate and restrict access to assisted reproductive technologies. As an article from the Center for Bioethics and Human Dignity explains: "[A]mong developed nations, the U.S. assisted reproduction or fertility industry is one of the least regulated.... Any technological means, regardless of the medical and ethical consequences, can be utilized in the pursuit of parenthood if the price is right." (7) Most gamete donations are made anonymously, and Washington is the only state that has passed legislation restricting donor anonymity. (8) In the vast majority of states, fertility clinics are largely self-regulated and can choose whether or not to abide by non-legally binding professional and medical guidelines. While the Ethics Committee of the American Society for Reproductive Medicine "strongly encouraged fertility programs to maintain accurate records of donor health to enable information to be shared with donor offspring," (9) the Centers for Disease Control and Prevention does not require fertility agencies to track the health records of individual donors. (10)

Many concerns raised by donor anonymity are the same as those that have arisen regarding adoption, particularly whether adult adoptees should have the right to obtain their adoption records and original birth certificates. Adoptees have raised arguments concerning the harmful effects of being deprived of information essential to the development of their personal identities, (11) as well as alleging a violation of their constitutional rights. (12) As a result, eight states now grant adopted adults access to their adoption records and/or original birth certificates. (13) However, the same states do not grant donor-conceived offspring the right to obtain the same information. (14) Similar disparities in the law exist in the Canadian province of British Columbia, prompting a discrimination claim and assertion of the right of donor offspring to receive the same information as adoptees. In the Canadian case of Pratten v. British Columbia, plaintiff Olivia Pratten alleged that donor offspring have been discriminated against because British Columbia's adoption laws allow adopted individuals to obtain information about their genetic origins, while donor-conceived offspring did not have access to the same information. (15)

This Note will explore whether donor-conceived offspring in states that grant access to adoption records could successfully argue that their equal protection rights under the Fourteenth Amendment have been violated because the states have not also granted them access to identifying information about their donors.

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Comparing the Rights of Adoptees and Donor-Conceived Offspring in States Granting Access to Original Birth Certificates and Adoption Records: An Equal Protection Analysis
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