Academic journal article Dalhousie Law Journal

Identity, Law, and the Right to a Dream?

Academic journal article Dalhousie Law Journal

Identity, Law, and the Right to a Dream?

Article excerpt


I. Case selection

II. Gamete donation and "origins "

III. Preserving adoptees ' original family ties

IV. Identity as complex process, for everyone

V. The limits of km



The notions that individuals have a right to know their genetic origins and that such knowledge is crucial to realizing their identities have become widespread. In numerous jurisdictions, they infuse legal and policy discourse. They also drive reforms to legislation, and to clinical practice regarding assisted reproduction and adoption. Indeed, they constitute a new orthodoxy. Exemplifying "the glorification of genetic connections in contemporary Western societies,"3 they represent a "'geneticisation' of the popular imagination, such that now genes are increasingly believed to be of overwhelming significance in every aspect of life."1 2

Complementary to cautions that recognizing such, a right may bear disproportionately on particular kinds of families, such as ones headed by single women or same-sex couples,3 this paper engages critically with this new orthodoxy by addressing two intertwined issues. One is the supposed "identity gap" between those who are adopted or donor-conceived and those who are neither.4 Arguments for law reform exaggerate the gap between those groups. Often implicitly, they oppose the incomplete, insecure identity of adopted or donor-conceived individuals to the ostensibly complete, secure identity of those raised by their putatively genetic parents. The effect can be to construct a flattened, misleading image of the identity formation of those who are not adopted or donorconceived. In the process, such arguments exaggerate what is distinct, and harmful, about being adopted or donor-conceived. The second issue is a mistaken perception of law 's role in fashioning identity and recognizing family ties, including wdiat it does for those who are not adopted or donorconceived and what it might do for those who are. For instance, some calls for law reform overstate the degree to which legal family statuses align with lived experience.

This paper grounds its analysis in a close reading of two case studies, each relating to a Canadian effort to change the law in the service of identity.5 One is the first-instance judgment, resulting from Olivia. Pratt en's attempt, via litigation under the Canadian Charter of Rights and Freedoms,6 to force the Province of British Columbia, to take measures to collect, preserve, and disclose information for individuals conceived using anonymously donated gametes.7 The other consists of scholarship supporting an amendment to Quebec's adoption regime that, would permit legal bonds between the birth family and the child to survive the latter's adoption. Using these case studies, this paper- does not directly dispute the idea of a "right to know one's origins." It neither doubts the sincerity of some individuals' avowed longings to know,8 nor opposes particular policy proposals. Rather, it focuses on the arguments advanced in support of proposals, drawling out problematic and erroneous assumptions about identity law, and the connection between them.

It is worth, anticipating skepticism or impatience on the part of readers for whom it is axiomatic that information about an individual's genetic origins simply is "his" or "hers." On that view, it matters little whether some arguments advanced to that end are less persuasive or accurate than others. This papers premise is that arguments, such as those studied below, have important effects. They enter a discourse that affects policymakers and legislative drafters: inform judges' understanding of children's best interests; code some family formations as better- than others, sustaining the legitimacy of the "bionormative" family;9 and shape decision-making about reproduction, such as whether- to use sperm from an anonymous or a known donor.10 A misunderstanding of family law's role in securing identity may engender unrealistic expectations on the part of adoptees or donor-conceived individuals advocating for reform, although such a concef. …

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