A couple of months ago I wrote several times about a case brought by Olivia Pratten in British Columbia, Canada. This thread (you can track it back from that one link) is really just a part of a larger, longer and more elaborate exchange about using third-party gametes that has run through this blog for over a year. Pratten is seeking access to medical records identifying the man whose sperm was used to create her. (As far as I know the case is still pending.)
In connection with the conversation occasioned by her litigation, I’ve had this story open on my laptop for about a week now. It’s an account of a lawsuit being pursued by Kimberly Springfield in Sydney, Australia. Springfield is raising a claim that is similar to that raised by Olivia Pratten. She is also seeking the identity of the man who provided the sperm used to create her.
While Springfield’s claim is similar to Pratten’s I do not think it is identical. It’s not clear from this article what the precise legal basis for Springfield’s claim is. It seems to be based on a reading of the records act applicable in the jurisdiction.
(You may recall that part of Pratten’s claim was that children conceived with third-party gametes were treated differently than adopted children and that this different treatment was problematic. I do not see that argument reflected here, though of course it could be part of the case without making the news story. Still, this reminds me that the equation of adopted children and those conceived with third-party gametes is an interesting one which I should probably revisit.)
In essence, of course, these cases are similar. They both assert a right to know the identity of the man whose sperm was used and perhaps the right to attempt to form some relationship with him. The law in Victoria (where Springfield lives) provides the information to people born after 1997. Springfield’s lawsuit seeks to extend the right back in time.
It’s useful to me to revisit the questions raised here from time to time and I’ll use this story for that purpose. I know it might seem repetitive, but sometimes I find things look different for one reason or another.
One thing that strikes me at the moment: It seems clear that a state/country could enact a law like the one here, guaranteeing people access to specified information about those who provided gametes used in ART. I don’t think anyone claims that such laws are impermissible. (Some might claim that such laws are unwise, but that’s a meaningfully different assertion.)
Once such a law is enacted, it’s pretty clear that questions will arise about why people born in 1997 have this right of access to information and those born before 1997 do not. There are possible answers–most obviously, that people who provided gametes before 1997 may have been promised anonymity while people after 1997 knew the information would be disclosed. Perhaps pre-1997 providers are entitled to rely on the promises that were made to them. At the very least, I think one must pause to consider their assertion of reliance.
But it actually appears that the law in Australia is keyed to date of birth rather than date of donation. So you could have two people conceived with third-party gametes in 1998. Both would have access to the identity of the gamete providers. One of those providers may have donated in 1997–knowing that his/her identity would be disclosed, while the other might have donated in 1990, when the provider might have relied on the promise of permanent anonymity. Keying rights to the date of birth rather than the date on which teh gametes were provided doesn’t seem to take the representations made to donors into account. I offer this observation not because I think it definitively throws the case in one direction or another, but rather to illustrate the kinds of questions Springfield’s lawsuit might raise.
There are, of course, much larger questions implicated here–and those are the ones I’ve discussed a bit in the past. I’d restate two clearly related questions here and perhaps go a bit further with this tomorrow.
First–is a law like that in Australia–one that essentially prohibits anonymous provision of gametes–a good idea. Here one might consider the virtues of this law as opposed to a law that allows individuals using gametes to elect either anonymous or non-anonymous donors. (That’s essentially the free market approach currently used in the US, isn’t it?)
Second–is a law like that in Australia not simply a good idea, but one that must necessarily be adopted. Is there some right to the information, such that any system which does not facilitate access to the information must be illegitimate? If there is such a right, where does it come from? Here in the US you might consider whether the US Constitution supports the assertion of this right. You can look to the same sorts of foundational documents in Canada or Australia, too. You can look to international treaties. Or you can assert that this right is essentially a natural right, held by all people regardless of the particulars of their location. My sense is that most of the people here who advocate the existence of this right do so from the last perspective listed here–but I imagine people will let me know if I am wrong about that.