Academic journal article Texas Law Review

The Right to Know One's Genetic Origin: Can, Should, or Must a State That Extends This Right to Adoptees Extend an Analogous Right Children Conceived with Donor Gametes?

Academic journal article Texas Law Review

The Right to Know One's Genetic Origin: Can, Should, or Must a State That Extends This Right to Adoptees Extend an Analogous Right Children Conceived with Donor Gametes?

Article excerpt

Notes

The Right to Know One's Genetic Origin: Can, Should, or Must a State That Extends This Right to Adoptees Extend an Analogous Right to Children Conceived With Donor Gametes?^

I. Introduction

Parents with adopted children face difficult decisions concerning what they should tell their children about the circumstances of their births.1 Traditionally, many couples, stigmatized by their infertility and aware of the stigma surrounding the unwed birthmother who gave her child up for adoption, chose to tell their child nothing about the fact that she was adopted-a decision with often disastrous consequences.2 Adoptees3 have fought long and hard to both destigmatize adoption and to encourage openness in the adoption process, including the disclosure of the birthparents' identities.4 Adoptees speak of a "right to know," not just to be aware of the genetic make-up of their birthparents, but to understand their own origins, part of which includes knowing who their birthparents actually are.5

As technology advances, so does the complexity of familial relationships. Couples experiencing infertility have many options in addition IMAGE FORMULA91

to adoption, including in-vitro fertilization (IVF) and donor insemination (DI). Oftentimes, these procedures involve the use of donor gametes, either sperm or ova. Unlike adoption, a state institution, these reproductive techniques are ordinarily private and primarily take place within the context of the doctor-patient relationship.7 However, as different as the mechanics of donor DI or IVF may be from adoption, the situation is quite similar from the perspective of the child.8 The child has at least one other genetic parent in addition to his or her own custodial parents10 and has an interest in the identity of that parent.

For many reasons, the identity of the gamete donor and the fact that she was conceived by assisted conception11 are often hidden from the child. Usually, the parents' secrecy is based on benevolent intentions-to protect the child and themselves from the social stigma associated with infertility and to attempt to give the child a "normal" life.12 Although a similar rationale was historically endorsed in the adoption context,13 the efforts of the adoptees, already described, have achieved openness in many states.14 Donor offspring15 currently do not enjoy the same openness,16 IMAGE FORMULA93

Much of the debate surrounding the release of genitor identities stems from the fact that the interests of the child, either as an adoptee or a child born through donor IVF or DI, do not (or are often perceived not to) cut in the same direction as the interests of the other members of the "triad"17-the genitors and custodial parents. Two states, Oregon and Tennessee, have recently confronted this conflict of interests in the context of adoption, and the states have balanced the interests in favor of the child's right to know the identity of her genetic parents. 18 These state statutes have survived constitutional challenge at the intermediate appellate level.19

To date, there is virtually no statutory treatment of a donor offspring's entitlement to information about her genitor.20 The adoption laws suggest either the possibility, or the requirement, that the children born through donor IVF or DI enjoy the same rights and protections as the adoptee. Although often treated analogously, assisted conception does not present exactly the same issues as adoption. In particular, the similarities between the situation of the adoptee and the donor offspring are stronger than the similarities between the parental members of the triad.21 Because the differences IMAGE FORMULA95

between birthmothers and gamete donors, and adoptive parents and couples who use IVF or DI, are significant, different treatment of children born through gamete-donor reproduction would probably survive constitutional challenge. …

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