Anonymity and Gamete Providers
posted by Courtney Joslin
An increasing number of children are being born as the result of assisted reproductive technology (ART). The CDC has reported that in 2008, ART cycles resulted in 46,326 live births. These numbers do not include births as the result of alternative or artificial insemination, which likely results in a much larger number of births each year. In a significant percent of these cases, one or both of the gametes – that is the sperm and/or eggs — were provided by someone other than an intended parent. Today, in the U.S. there are no laws addressing whether the providers of gametes must disclose their identity.
Yesterday, the British Columbia Supreme Court Judge held that British Columbia will no longer allow anonymous donation of gametes. Pratten v. British Columbia (Attorney-General), 2011 BCSC 656. In 1996, the law in British Columbia was amended to provide adopted children the right to gain information about their genetic parents. This law did not, however, extend this right to children born through ART. In its ruling, the court held that the exclusion of children born through ART constituted impermissible discrimination based on the children’s method of conception. The court explained that the evidence demonstrated that both sets of children – adopted children and, in the words of the court, donor offspring – “are closely comparable” “with regard to the need to know and have connection with one’s roots.” Pratten v. British Columbia, at 77. The court further concluded that the government had failed to offer a sufficient explanation for this differential treatment.
The court gave the government 15 months to implement its ruling. In the meantime, however, the court granted an injunction prohibiting the destruction of records regarding gamete providers. As a result of the ruling, “anonymous gamete donation will no longer be permitted in B.C.”
A number of scholars recently have written about the issue of anonymity for gamete providers. In her recent book Test Tube Families: Why the Fertility Market Needs Legal Regulation (2009), Naomi Cahn takes the position that anonymous gamete donation should be prohibited, and that children conceived through ART should be permitted to obtain information about their gamete providers when they reach the age of 18.
In her review of Cahn’s book, Gaia Bernstein “caution[s] against the adoption of a mandatory prohibition on anonymity in the United States.” As Bernstein explains, a small but growing number of countries around the world prohibit gamete provider anonymity. Bernstein contends that while the evidence is inconclusive, some studies suggest that prohibitions on anonymity have led to shortages of gametes and that this, in turn, has resulted in the erosion of “commitments to equality and to the prevention of commodification.”
Regardless of one’s position on the question of gamete provider anonymity, one must also ponder whether anonymity will continue to be a real possibility in light of the internet, new technology making it much easier and cheaper to perform genetic testing, and developments such as donor sibling registry.