Where Are We Heading With Donor Anonymity

Here’s a recent bit from Time magazine (I think only on the website) about donor anonymity.   (Take note that the headline is misleading–do read the article.)   As you’ll notice if you read this, I’m quoted in it, so there’s a bit of self-promotion here.  But I hadn’t actually gotten around to discussing the new Washington law that is the taking off point for the piece and it is worth taking the time to say a few things.

This year Washington enacted a major revision of its law governing parentage.   There are a number of different provisions, one of which ensures access to certain types of information for those conceived with third-party gametes.   Contrary to the headline (and consistent with the text of the article), the law does not bar donor anonymity.  It doesn’t go as far as the Pratten case from neighboring British Columbia.    Instead, it ensures access to forms of non-identifying information while parallel provisions apply to those who elect to provide or receive identifying information.

One way to understand this law is to see it as part of a trend away from ready acceptance of anonymity.   What was the rule 20 or 30 years ago is perhaps now an exception to the rule.   Certainly there is far more discussion of the question then there was even a decade ago.

Part of this is simply practical.   I can do little better than to point to this quote from Greg Moga, CEO of European Sperm Bank, USA (which is actually based in Seattle):

The Seattle bank accepts only “open-ID” donors; in the past few  years, only three of their more than 4,000 applicants — mostly graduate students  at the University of Washington — have inquired about remaining anonymous. “We  think the world is moving toward a place where we have no barriers to personal  information,” says CEO Greg Moga. “Look at the Internet, look at Facebook.  Everything is discoverable.”

In other words, promising anonymity is increasingly unrealistic.    Neither the gamete providers nor the gamete users can rely on it.   At the same time, relying on open ID donors is obviously feasible.  It doesn’t spell the end of the use of third-party gametes.  (The claim that open ID will cause the supply of providers to collapse has been made in the UK but, as I’ve said several times, seems to me unwarranted.)

But the shift here is more than just pragmatic.   Rightly or wrongly, there is a growing sense that open-identity donation is a better path, just as there has been an acceptance that open-adoption is a better path.   That’s the point I was trying to make where I am quoted in the article.

Now I confess that I am a bit leery about this trend.   It’s not clear to me that the law is keeping pace with the changing sentiments.  Maybe I should say something a bit stronger:  The law is not keeping pace.  In some states (Washington is not among them) gamete providers may have legal parental rights.   If that’s the case, then open identity can lead to all sorts of problems.

There is no place for ambiguity here.  This serves no one.   The law needs to be absolutely clear that the gamete providers are not legal parents.  With that resolved, individuals are free to make the decisions they want to about known (or knowable) vs. anonymous providers.   My sense is that more people will choose the former as time goes on and I think the law ought to facilitate that choice.


5 responses to “Where Are We Heading With Donor Anonymity

  1. Please clarify what you mean by Open ID. I doubt it is actually open; rather it is closed until the age of majority at which time it becomes open.
    In that case the legal status with regard to parental rights and obligations is exactly the same as anonymous. This does not represent a significant legal change at all.

    • You’ve described what I assume “open ID” means. Were I advising a client in a state where a gamete provider has parental rights by virtue of the genetic linkage, I would distinguish between open ID and anonymous. Open ID means the information is there in the clinic’s files, waiting to be made available. Someone might argue to a judge that it is all just a matter of time and so accelerating disclosure isn’t a big deal. Some judge might buy the argument. And then it does matter a great deal. Anonymous means unknowable–cannot be recovered–or at least never intended to be disclosed, so there’s less chance of things going awry. This is my think-of-the-worst-case-scenario thinking, but sometimes that is what lawyers need to do for their clients.

  2. Here in the UK, these issues are all determined by the law with very little ambiguity. Donors (other than in occasional known donation cases) have no legal parentage. The details of conception all go on a central publicly-managed register, and donor-conceived people have a right to access that information (accessing non-identifying information during childhood, and the donor’s identity once they reach the age of 18). The law is the product of a long period of debate in the UK, and I think the system works really well, although to be fair it’s probably too soon to judge the long term results. There are some complexities resulting from the transition from donor anonymity to this sytem in 2005 – my own kids (who are sperm donor conceived) for example don’t have an identifiable donor because my oldest child was conceived before the law changed and they are full genetic siblings.

    • Transitition periods from one legal regime to another are always tricky. But the situation in the UK seems preferable in at least two regards. First, the law is pretty clear. Second, the law is uniform across the country. You’d get the same legal result in London or York. I think the patchwork of laws in the US is really problematic, especially as people travel from state to state quite freely and gametes (especially sperm) is quite commonly collected in one state, sold in another state, and shipped to a third state. There are so many ways to find trouble. Using anonymous (and theoretically unknowable) providers controls some of the risks created by all the variations in law.

  3. Where can I actually read Washington’s new law? There’s lots of press coverage on the Web, but darned if I can’t find the actual name or text of the law. Is it retroactive? Or is it in effect for all subsequent donations?

    I’m a donor-offspring in Washington state (the donation happened in Washington state, as well). I’d love to get any information that’s available.

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