My last post was about a Canadian case I’ve been following from some time–a case in which Olivia Pratten sought access to identifying information about the sperm donor use in her conception. The British Columbia Court of Appeals rejected her claim. There’s further coverage of the case (and fairly critical coverage) here.
As I think about it a bit more, it might be important to distinguish between two slightly different arguments Pratten has offered. First, you could argue that whatever the rights of adopted and donor conceived people are, they must be treated the same. I’ve written elsewhere about the sameness/difference of adopted and donor conceived people. I think it’s complicated. (The post I have linked to was spurred by the lower court opinion in Pratten’s case.)
There are arguments for sameness and there are also arguments for difference. Part of the issue, perhaps, is that adoption is itself a broad category. There are, for example, people who are adopted as adults and there are also those who are adopted as infants. Their situations may be quite difference and that makes it somewhat difficult to argue that a third group of people (those who are donor conceived) are like adopted adults. I think it might be easier to make the argument that those adopted as infants are like those who are donor conceived, but even there I think there is a picture of sameness and difference.
There’s a second argument, though, that avoids all this messiness about the breadth of the category “adopted.” That is an argument that every individual has a right to access to her/his genetic lineage (or something along those lines). Now this assertion has implications for both adoptees and those who are donor conceived and the implications may be similar, but the argument doesn’t require you to initially establish that those who are donor conceived are like those who are adopted.
In this sense, it is quite a different argument for the one described above. It is an argument for the existence of a particular right rather than an argument in favor of equal treatment. But to be clear, the existence of this right is quite controversial. Indeed, you could say that it lies at the heart of a lot of the arguments about use of third-party gametes. I think it is fair to say that historically it has not been widely accepted and therefore, it is in the nature of a newly created/recognized right. (I’m prepared to be told I’m wrong about this, but it is what I believe to be true.)
In the language of US constitutional law (which I understand does not apply in Pratten, but still, it’s interesting) the first argument is an equal protection argument while the second is a substantive due process claim. Each of these doctrines has its own controversies to consider. Equal protection turns on the assertion that two things that are essentially similar are being treated differently. Apart from establishing that the things are essentially similar you also have to convince the court that the distinction is being drawn on a problematic basis–as where you argue that a distinction is being draw based on race or sex.
Substantive due process may be even more controversial. In substantive due process the court identifies rights that are not directly included in the Constitution. The Court used this process when it established the right of a woman to choose to have an abortion which, as you doubtless know, is quite controversial. And while it is true that this last discussion is focussed on US constitutional law, there is a broader question that is always raised when you use anything like a substantive due process argument involving a new right: How do we know what rights exist and where do they come from?