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Prohibiting anonymous sperm donation and the child welfare error.

Should anonymous sperm "donation"--a misnomer, since sperm is usually purchased--be permitted? A number of countries, including Sweden, Austria, Germany, Switzerland, the Netherlands, Norway, New Zealand, and several Australian states, have answered no. (1) The United Kingdom recently joined this list, instituting a system whereby new sperm (and egg) donors must put information into a registry, and a donor-conceived child "is entitled to request and receive their donor's name and last known address, once they reach the age of 18." (2) The arguments offered by the legislators in these jurisdictions in favor of these measures, along with the arguments offered by scholarly proponents such as Naomi Cahn, focus on one major consideration: child welfare. (3) The claim is that donor-conceived children are harmed when they are deprived of access to the identity of one of their genetic parents. Interestingly, opponents of these measures have battled on the same playing field, disputing the empirical evidence underlying the claim of harm to children.

In relying on this foundation, I will argue, both sides are making an error. These child welfare arguments are part of a larger error in using what I call "best interests of the resulting child" reasoning as justifications to support governmental interventions that aim to alter when, whether, or with whom individuals reproduce. (4) This is a tempting but erroneous transposition of "best interests of existing child" reasoning from family law. It allows the construction of a false overlapping consensus around the genuinely uncontroversial imperative "do not harm children," obfuscating the controversial reasoning that must actually underlie these interventions.

The reasoning is mistaken for reasons that are related to Derek Parfit's nonidentity problem and are also implicitly recognized by the U.S. courts that have rejected wrongful life tort liability. (5) Whenever a proposed intervention will determine whether a particular child will come into existence, child welfare arguments premised on that child's welfare are problematic. So long as a child will not have a "life not worth living," the child cannot be said to be harmed because the alternative was simply not existing. (A different child was substituted for it because not using the proposed intervention meant not creating that child). Thus, any intervention that will alter whether, with whom, or even when individuals reproduce cannot be justified by concern for protecting the resulting child's welfare unless the child would have a life not worth living--a condition that may not rule out any lives at all. In any event, there is no plausible argument that children born of anonymous sperm donation have lives not worth living.

Prohibitions on sperm donor anonymity tend to have implications for whether and with whom individuals reproduce. Such regulation may cause some would-be donors not to donate. It also may change whether recipients reproduce, since some intending parents will be unwilling to engage in artificial insemination if donor identification is mandated. Further, regimes that prohibit anonymity usually, other things being equal, reduce the number of sperm donors; that has been the experience in Sweden, the Australian province of Victoria, England, New Zealand, and the Netherlands. (6) If such regulation produced a true gamete shortage, then we would end up with a de facto restriction on whether some women seeking donors reproduce.

To deal with such shortages, many countries try to recruit new sperm donors, which eases the limits on whether women reproduce but affects with whom they reproduce. In Sweden and in the Australian province of Victoria, "recruitment efforts have focused increasingly on the older, more altruistically motivated donor as a way of rebounding from the initial dampening effects" of the prohibition on donor anonymity; one clinic in the Australian province of New South Wales even flew Canadian students to Australia for complimentary "vacations" that required sperm donations every second day. (7) Furthermore, even if the same donors provide sperm to the same recipients under the new and old regimes, the different regimes may alter when they donate and thus when reproduction takes place.

If a shift from a regime permitting to one prohibiting anonymous sperm donation always altered when, whether, or with whom individuals reproduced, one could say that child welfare reasoning was irrational as a justification. I call such situations "perfect" nonidentity problems. By contrast, hypothetically there could be at least one child who would have come into existence in both the anonymity-permitted and anonymity-prohibited regimes--an instance of sperm donation that was completely unaffected by the regulations. For that child, a child welfare justification will be possible, if he or she would be better off having access to the identity of his or her donor genetic parent. I call this type of situation an "imperfect" nonidentity problem. But the number of children for whom this will be true is much, much smaller than the universe of all donor-conceived children.

Can this fact save the child welfare argument here? Perhaps, if it is thought of as a strong deontological side constraint--a categorical rule that "state intervention should be set up in such a way that, to the extent possible, no child is harmed." At this extreme, the distinction between perfect and imperfect nonidentity problem cases will carry a lot of weight, for as long as one child will be harmed if sperm donors can be anonymous, then there is sufficient justification for state intervention, notwithstanding countervailing parental interests. The imperfect cases, however, pose not just a question of the number of children harmed and the severity of harm, but also a problem of probability. In any given case, we do not know whether the same genetic child will in fact result, such that the side constraint distinguishing perfect and imperfect cases would have to be "do not entertain any probability of harm to even a single child," rather than "do not harm even a single child."

Such a strong side constraint would go far beyond what we currently tolerate for state interventions to protect the interests of existing children. The current rules pertaining to the detection and prosecution of child abuse, reassignment of parentage, and so on seek to reduce the incidence of harm to children; if, instead, we had a single-minded side constraint of preventing the possibility of harm to a small number of children, then we would entertain much more intrusive forms of state monitoring. Closed-circuit televisions in every room of every house with government employees constantly watching, perhaps? If one finds such a proposal worrisome, then, as important as the welfare of existing children is, perhaps we are not comfortable with this very strong side constraint. Instead, we are implicitly adopting a framework that treats the probability and number of children who will be harmed as one consideration to be balanced against what a stronger intervention would mean for countervailing interests in family privacy and childrearing autonomy.

The same should be true for resulting children. Thus, the imperfect nonidentity problem sharply weakens the force of child welfare arguments for sperm donor anonymity. If one thinks that choosing an anonymous sperm donor is an important part of procreative liberty that in turn is of significant value in our society, then the case against these measures is easy. But even if one attaches less weight to the interest in having or being an anonymous sperm donor or to procreative liberty in general, then as long as they get some weight, the fact that a large number of parents' interests will be burdened to protect a very small (probabilistic) number of children from a small welfare detriment should make us skeptical about this justification for eliminating sperm donor anonymity.

Can anonymous donation be distinguished because something can be done after the birth to remedy the "injury" to the child: enable access to the identity of the donor parent? This would adopt the "last judgment strategy" suggested by Axel Gosseries in the environmental context. (8) However, as I have explored in greater depth elsewhere, (9) as a justification for legal regulation this will not work due to what I call the "anticipation problem." A law requiring a sperm donor to place his name in a registry available to the child at age eighteen is the very thing likely to alter donor and recipient behavior relating to when, whether, or with whom they reproduce. Thus, a legally enforceable catch-up obligation feeds back into the conception decision and is not immune from the nonidentity problem.

One might reject the best interests of the resulting child standard but still opt to prohibit anonymous sperm donation. There are alternative justifications for prohibiting those regulations. One might argue, for example, that we can wrong children by bringing them into existence even while overall benefitting them; or, to turn to just one other possible justification, one might argue that anonymous sperm donation is incompatible with parental virtues that government policy ought to foster. In forthcoming articles in the Minnesota Law Review, I argue that these and other alternatives also face significant problems. For present purposes, though, all I want to suggest is that it would be far better to openly embrace and discuss these alternatives than to hide behind the palatable but ultimately vacuous claim that these programs are designed to prevent harm to resulting children.

(1.) M. Dennison, "Revealing Your Sources: The Case For Non-Anonymous Gamete Donation," Journal of Law and Health 21, no. 1 (2008): 1-27, at 8; I. Turkmendag et al., "The Removal of Donor Anonymity in the UK: The Silencing of Claims By Would-Be Parents," The International Journal of Law, Policy, and the Family 22, no. 3 (2008): 283-310, at 283-84; L. Frith, "Gamete Donation and Anonymity, The Ethical and Legal Debate," Human Reproduction 16, no. 5 (2001): 81824, at 818-20.

(2.) The HFEA Register, http://www.hfea. gov.uk/1973.html, accessed May 9, 2011.

(3.) K. Daniels and A. Douglass, "Access to Genetic Information by Donor Offspring and Donors: Medicine, Policy and Law in New Zealand," Medicine and Law 27, no. 1 (2008): 131-46, at 134; N.R. Cahn, Test Tube Families: Why the Fertility Market Needs Legal Regulation (New York: New York University Press, 2008), 114-29.

(4.) I.G. Cohen, "Beyond Best Interests," Minnesota Law Review 96 (forthcoming, 2011); I.G. Cohen, "Regulating Reproduction: The Problem with Best Interests," Minnesota Law Review 96 (forthcoming, 2011). Both will be available at http://ssrn.com/ author=358116.

(5.) D. Parfit, Reasons And Persons, rev. ed. (Cambridge, U.K.: Oxford University Press, 1987), 358-59.

(6.) G. Bernstein, "Regulating Reproductive Technologies: Timing, Uncertainty and Donor Anonymity," Boston University Law Review 90 (2010): 1189-1219, at 1207-1218; J. Carbone and P. Gottheim, "Markets, Subsidies, Regulation, and Trust: Building Ethical Understandings into the Market for Fertility Services," Journal of Gender, Race, and Justice 9, no. 3 (2006): 509-548, at 540.

(7.) E. Waldman, "What Do We Tell the Children," Capital University Law Review 35 (2006): 517-61, at 552, citing A. Lalos et al., "Recruitment and Motivation of Semen Providers in Sweden," Human Reproduction 18 (2003): 212-16.

(8.) A. Gosseries, "On Future Generations' Future Rights," Journal of Political Philosophy 19 (2008): 446-74, at 459-61.

(9.) Cohen, "Regulating Reproduction."

This column appears by arrangement with the American Society for Bioethics and Humanities.
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Title Annotation:policy and politics
Author:Cohen, I. Glenn
Publication:The Hastings Center Report
Geographic Code:1USA
Date:Sep 1, 2011
Words:1850
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