Donor anonymity and rights

Emily Jackson, senior lecturer in Law at the London School of Economics

Progress Educational Trust

27 January 2004

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[BioNews, London] The announcement that the government intends to remove anonymity from sperm, egg and embryo donors was framed in terms of rights: the child's right to information about her genetic origins should, it was argued, take priority over the donor's right to privacy. This appeal to rights is unsurprising. The UN Convention on the Rights of the Child contains a right to know one's identity, as far as possible; and it has recently been accepted that a person's interest in information about their genetic father might be protected under Article 8 of the Human Rights Act 1998 (the right to private and family life). And rights unquestionably give the impression of a strong and uncompromising commitment to protecting the interests of vulnerable groups.

But how accurate or helpful is it to talk about a right to know the identity of one's genetic parents? If we were to say that people conceived using donated gametes have a legally enforceable right to know their donor's identity, we would be treating them very differently from all other children. Children conceived naturally certainly do not have such a right. A significant proportion of the population, perhaps as many as 10 per cent, are in fact biologically unrelated to their presumed fathers. Infidelity may then be a statistically greater threat to accurate knowledge of our biological origins than the relatively small number of births using donated gametes and embryos. More importantly still, mothers are under no obligation to name the child's father on the birth certificate: mothers' interests in keeping the father's identity secret are allowed to trump children's interests in knowing the truth.

This in turn leads to an interesting difference from adoption. Adopted children have the right to see their original birth certificate when they reach the age of 18. This will tell them the identity of their mother, but it might or might not reveal their father's identity. Adopted children, therefore, do not have the right to know both birth parents' identities.

It is also difficult to see how any right to information about one's origins might be enforced. Although there is clearly a connection between anonymity and secrecy, it is very important to remember that they are not the same thing. The right to information about the gamete donor will not necessarily eliminate secrecy surrounding the circumstances of a child's conception. Unless the use of donated gametes must be recorded on the child's birth certificate, or a duty is imposed upon parents to tell their child that they were conceived using donated gametes, the right to information will not automatically lead to greater openness.

And for good reasons, it seems extremely unlikely that we would force parents to tell their children that they were conceived using donated gametes. Not only might endorsed birth certificates stigmatise children, but also there could still be no guarantee that children would in fact be told the truth by their parents: children do not necessarily see their birth certificates during early childhood. Parents' freedom to bring up their children according to their own values and beliefs is vigorously protected by family law: interference with family privacy is permitted only when the standard of parenting falls below a minimum threshold level, judged by whether the children are at risk of significant harm such that removal from the family home would be justifiable. In relation to anonymity, it seems inconceivable that parents' freedom to make choices about their child's upbringing would be trumped by a child's 'right' to know the truth.

It would, perhaps, be more helpful to regard the removal of anonymity as a way of protecting a child's interest in (and not her right to) greater openness and transparency about the circumstances of her conception. If donors are identifiable, a clearer message can be sent to parents that children conceived using donated gametes will generally benefit from frank and honest disclosure as early as possible in childhood. But unless we want to single out children conceived in this way and subject them and their parents to a wholly incongruous and exceptional intrusion into family life, we should probably avoid framing our discussion in terms of anomalous and patently unenforceable rights.

Reproduced with permission from BioNews, an email and online sources of news, information and comment on assisted reproduction and genetics.