Academic journal article Health Law Review

Mum's the Word: Donor Anonymity in Assisted Reproduction

Academic journal article Health Law Review

Mum's the Word: Donor Anonymity in Assisted Reproduction

Article excerpt

Traditionally, assisted human reproduction by gamete donor (1) has been a secretive, even anonymous, procedure. The very fact that an individual was conceived by assisted reproductive techniques was hidden from that individual, and strict donor anonymity ensured that both donor offspring (2) and their birth parents (3) would never know the identity of the donor(s). In fact, some fertility clinics would mix the sperm of more than one donor before inseminating a woman, so that no one would know which of the donors had a genetic link to the resultant child. (4) As a result of this secrecy, donor offspring have often assumed, or been led to believe, that they were the genetic child of both their birth parents. And even if they had been told of their donor origins, few have ever been able to gain access to any information, particularly identifying information, about their gamete donors. This history has led to an apparent presumption in favour of secrecy in assisted reproduction by donor ("ARD"). However, over the past 20 years this presumption has been challenged by a call for greater openness in ARD, with particular emphasis being placed on donor offspring having information, including identifying information, about their gamete donors.

Canada has responded to this call in cl. 18 of Bill C-13. (5) Unfortunately, this response is inadequate. Although cl. 18 guarantees donor offspring access to health information about their donors, it stops short of complete openness by providing that identity information can only be passed on to donor offspring with the written consent of the donor. Allowing donors to withhold their identity from their donor offspring is particularly surprising given the Standing Committee on Health's recommendation that donors be required to consent to subsequent release of identifying information before they make a gamete donation. (6)

A call for complete openness in ARD is not to ignore the important arguments that are often given in favour of secrecy. Rather, it is to say that because a choice must be made between secrecy and anonymity on the one hand and openness and honesty on the other, the presumption should be in favour of the latter policies. Similarly, where a choice must be made between the interests of birth parents and donors and the interests of donor offspring, the presumption should be in favour of donor offspring. Arguments for secrecy in ARD state that anonymity and secrecy are necessary to protect the birth parents, the family unit, the donor, and the donor offspring. For instance, it is said that society disapproves of ARD and that secrecy is necessary to protect both the birth parents and the donor offspring from perceived societal disapproval and stigma. (7) Another commonly cited justification is that secrecy protects the feelings of the infertile birth parent (usually the man) because, as one commentator noted, "[o]ur society has unfortunately equated virility with fertility in men." (8) However, as fertility services are accessed by more and more people, it seems likely that the public will (if it has not already) become much more sympathetic towards the use of ARD and the cause of infertility in general, and so fears of public disapproval should be lessened.

It is also often argued that openness in ARD would create a shortage or complete lack of donors (particularly sperm donors). (9) It is supposed that donors will be discouraged from donating if they know that their donor offspring could one day contact them. However, unwillingness among donors to being subsequently identified to, and perhaps contacted by, donor offspring may not be as prevalent as first assumed. A New Zealand study found that 68% of sperm donors surveyed were agreeable to their identity being made available to their donor child (10) and Australian studies have reported similar findings." In Sweden, the profile of sperm donors changed from young students to mature family men when a law was passed to give donor offspring access to identifying information about their gamete donors, and despite an initial drop, donor numbers did not suffer an overall decline. …

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