As you all know I’m a law professor and that means many of the folks I talk to are also law professors. Over the years I’ve had countless exchanges, some casual and some more in the nature of debates, about the value of anonymity for those who provide sperm and eggs to people doing ART. This remains a lively issue among academics.
It’s an important topic, both in terms of the big picture and for the individuals most directly affected. It’s also one where my own views have changed dramatically over the years and are, I imagine, still evolving. This probably makes it especially interesting to me.
Yet it seems to me that questions about the value of anonymity and the ways in which the law should/should not protect/promote it are being outflanked by reality. Which brings me to this blog post. It’s by Wendy Kramer, a co-founder of Donor Sibling Registry (DSR). ( I think she’ll be writing regularly there, so you might want to keep an eye on that page.)
Anyway, what Kramer’s post makes clear is that no one can promise gamete providers anonymity anymore. No matter what records are/are not kept, it is simply impossible to remove identifying information from the gametes. Indeed, the gametes are the essence of identifying information and when the gametes are used for ART, the identifying information is necessarily passed along to the resulting child. No one and nothing can prevent the child from accessing this information if she/he wants to.
It has always been true that gametes contain identifying information, of course. What has changed is our ability to extract the identifying information and then use it to locate the gamete provider. Again, as Kramer’s post makes clear, it’s often not even that difficult to do these days.
Now this doesn’t mean that all gamete providers will be identified. There are at least two reasons why a gamete provider might not be identified: First (and surely most important) the child and her/his parents may not care to do so. Not all donor-conceived children do. And if the child and her/his parents doesn’t care, it’s not clear to me that anyone else will make the effort. Second, I’m pretty sure there will be individual cases where it will be difficult to impossible to locate the provider for particular reasons–say the provider lives in some isolated area that is really off the grid for one reason or another.
But this doesn’t change what I see as Kramer’s key point in her post–No one can promise a gamete provider anonymity anymore. It’s irresponsible and perhaps even dishonest to do so. It doesn’t really matter whether this is a good thing or a bad thing. It’s just a thing we have to accept as part of the nature of our world. People who are thinking about providing gametes for ART need to understand that their anonymity cannot be guaranteed even if that means that some people will decide not to proceed.
I think this also means that in many ways the law professor’s conversation about whether anonymity is good/not good is increasingly irrelevant. But there are still many important conversations to be had. It’s just that they are different conversations.
For instance, in a world without anonymity, the law still defines the rights and responsibilities of a gamete provider, as well as the rights and responsibilities of the people who use the gametes. I also think that the law can (and probably should) define the rights of a child conceived using third-party gametes. (I’m much less sure that the law can impose any responsibilities of the to-be-conceived child.) The content of these various sets of rights and responsibilities is surely up for debate and discussion. And sooner would be better than later, I think. (There’s also the problem that different jurisdictions have taken quite different approaches to these questions, which creates a complicated patchwork and doesn’t make anyone’s life easier, really.)
Beyond that, legal structures surely influence our choices all the time. And maybe this means that the good/bad question about anonymity does still have some importance. The law in this area can be structured to encourage whatever choices we think people ought to be making. For instance, if you think people should be choosing gamete providers who will be readily identifiable to a child (as opposed to donor’s whose identities can be dug out with some effort) then you might consider how legal structures can encourage that choice. I’ve said before that I think making it clear that the provider has no parental rights and obligations vis-à-vis the child is one thing that might help, but I know this is open for debate. Given that none of the questions here are really easy, it seems like it would be most useful to actually focus on the ones that still matter.