For the moment, I want to focus on one of the arguments asserted by Olivia Pratten, who is the plaintiff in the case. As I understand it, she is arguing that since British Columbia’s adoption law allows an adopted child to gain access to the identity of her birth parents when she or he turns 19, principles of equal treatment require the same access be provided to children conceived using third-party gametes, or at least third-party sperm.
Implicit in this argument is an assertion that (at least for the purposes of this case) donor conception and adoption are similar and therefore should be treated similarly. This is worth thinking about.
It seems to me that there are ways in which donor conception and adoption are similar and there are also ways in which they are entirely dissimilar. This makes me very wary of broadly equating the two. Instead, I think we ought to think carefully about the similarities and the differences and which ones are important for what kinds of decisions.
For example, I think we all agree that the people who give a child up for adoption are themselves parents of the child. It is broadly understood that they are giving up constitutionally protected parental rights and obligations. And of course, adoption doesn’t occur until there is a child. While arrangements for adoption can be put in place before the birth of a child, the adoption cannot be completed before the child is born. Indeed, generally the parent or parents of the child have at least a brief period of time after the child is born to reconsider the agreement to adopt.
So is providing sperm like giving a child up for adoption? I know that some people say that providing sperm ought to be treated like adoption and that’s exactly what worries me about the sweeping analogy. It seems to me there are obvious differences that warrant different treatment: There is no child so it’s a bit difficult for me to say that there are parental rights anywhere in the picture. There may not be anyone in particular waiting to step in an assume parental rights. And further, as I’ve said fairly frequently here, I don’t see that simply providing genetic material ought to give you parental rights. The man gives up (or sells) his sperm, nothing more.
Now there are other perspectives from which you can see similarities between adoption and use of third-party gametes and these are more important for Pratten’s claim. The adopted child is not being raised by people genetically related to her/him. At the same time, the people who are genetically related are not legal parents and may not be known to the adopted child. You can say similar things about a child who is conceived via donor gametes. (It’s a bit trickier, because she/he is often genetically related to at least one person raising her/him.)
I’m not at all sure that the overall experience of being raised as an adopted child has much in common with the overall experience of being raised as a child conceived via third-party gametes. I’m sure it’s been studied and I bet there’s a lot to say about it. I think it is probably safe to say that there are ways in which it is similar and ways in which it is not and that individual experiences can vary greatly.
My point here isn’t to either accept or reject the adoption/donor-conceived analogy in general. I think it is useful to think about both the similarities and the differences between the two. Some aspects of similarity may warrant similar treatment in some regards. But all of this requires care and thought and not sweeping generalizations.
To be clear, I do not have any reason to think that Olivia Pratten is offering sweeping generalizations. I’m concerned, though, that others will take the argument that she offers and over-generalize it. The real danger is extending the analogy without thinking carefully about how far it holds true.