The unconstitutionality of anonymous sperm donation

This post was inspired by Whosedaughter's entry "Perclusion of the sex act=less than=discrimination".  It is also a part of the IDOA Yearly Report for the United States that I wrote, which will be formally released soon.

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With Olivia Pratten's case in British Columbia looming, the legal perspective of the unconstitutionality of current dnonor conception practice is knocking on America's door.  In order to establish that anonymous donation are unconstitutional, we must first defend that the so-called confidentiality agreements are of questionable constitutionality, because they are directly discriminating against individuals created by such contracts, and we must then convey that persons created by gamete donations are discriminated against by the United States under the equal-protection clause of the 14th Amendment.

In 1868, the United States Congress ratified the 14th Amendment to the Constitution, which in that held the Equal Protection Clause.  This clause states that:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.   - Section 1 of the 14th Amendment

Now lets fast-forward to the 1970's.  Prior to the 1970's, children born out-of-wedlock were denied many of the same rights of inheritance as "legitimate" persons.  But then a series of Supreme Court decisions abolished the previous common law disabilities of illegitimacy (bastard), as being in violation of the equal-protection clause.

However, there is one notable exception to this law: "children born via donor sperm are generally not considered legally entitled to a father unless their mother was married to a man who consents to their conception.  Children born from donor sperm are considered to be not related at all to their genetic father, and courts generally regard donor-conceived children to have no legal rights of support from parents except for the support that parents agree to supply." 

This is in direct conflict with how any other child is treated in the eyes of the courts.  Fathers who abandon other children are forced by court of law to pay child support, because even if the parents were never married that child is still genetically related to him and he must pay for that child.  DNA tests are even used to establish paternity, so genetics must play a role.  If a woman was sleeping around and got pregnant and her boyfriend or husband was not the father, a DNA test would prove that and he would not have to pay child support.  In these cases the fathers are forced by the law to take responsibility and parental obligations for the children they sire.

Sperm donors do not.

And it is not necessary for there to even be a "social" father to take over that sperm donors responsibility.  Therefore, donor conceived children are the only children in the world who legally do not have a biological father.  This is discrimination.

Discrimination: "involves treating someone less favorably because of their possession of an attribute (e.g. sex, age, race, religion, family status, national origin, military status, sexual orientation, disability, body shape/size) compared with someone without that attribute in the same circumstance"

If we consider our situations to be of similar circumstances to those born out-of-wedlock (we are not from our biological/genetic parents marriage, therefore we are not welcome, and not a part of that family), then based on the definition of discrimination, this is surely grounds for a lawsuit.

Bill Cordray points out in his article "Is Anonymity Constitutional?" that (paraphrasing): While we may see the contracts our parents and the donor signed to anonymity as legally binding, some courts have actually held such contracts as invalid (see "A Case Against Sperm Donor Anonymity").  The donor's so-called 'right to anonymity' has no legal backing and was simply invented by the infertility industry as a means to gain donors trust.  

Bill also argues that: Society believes that having children is a right, including having children by donor insemination, however this right does not trump children's rights.  These confidentiality agreements are not viewed by the State as reason to deny us information about who we are, but rather to assure the parents and the donor that a) the donor will not come in and take the child away from the legal parents, and b) that the donor is not financially responsible for that child.  However, these two reasons disappear upon the child reaching adulthood, and therefore these contracts have no use to the adult offspring who was not a part of the agreement.  If these contracts cannot meet substantive due process under the 14th Amendment, then the agreement is simply to protect the identity of the man who fathered the child, and this cannot be defended and is unconstitutional.

Under construction

I'm currently reworking the HTML of my template, so please be patient as I readjust and return all the old functions.  I should be done by middle of this week.  Thanks everyone for your cooperation.  

Also, if you find any links that are now dead or other things that are weird, please let me know!!  I'm still a beginner at HTML, so going from a easy layout format to a classic HTML template is new for me, and I've already found mistakes!

The four stages of the donor conceived person

I often get comments from parents that my views are "extreme" and that most donor conceived individuals do not feel the way I do about our conception.  While I agree that there is a huge spectrum of attitudes, ranging from very good to very bad, I would not call my opinion extreme, but rather enlightened and free of guilt and manipulation.

One thing I have not talked a lot about is how these attitudes change over the course of ones life.  Most young DC children will tell you they are happily content with who they are, and show little regard for their donor.  For some individuals this continues on for decades - for others it changes early on - and for yet another group (presumably) it never changes.  

As I have mentioned many times, I have known all my life that I was donor conceived, and early on it didn't phase me much...not really understanding the concept, or realizing what a father really was (my mom was single), I lived in happy ignorant bliss.  After my mother married and I suddenly had  a "dad", I began questioning the fact that I was denied the ability to know my real father.

My "dad" legally adopting me was the spark that ignited the confusion, anger, and loss associated with being donor conceived.  It took several more years, and finally interactions with other donor conceived adults to understand that I was not alone in my feelings.

For others it's being in a committed relationship or getting married, for some it's after the birth of their first child, for others its the death of a parent, often its after their parents divorce...in each of these cases there is a turning point.

The idea of existential debt is often the primary reason that offspring are hesitant or even aggressive towards the position that myself and many others take to our conception.  This need to be grateful for our lives is in direct conflict with the losses involved in donor conception, and they cannot be felt simultaneously.  These offspring, while they may seem "well-adjusted" to most parents (who believe that their lack of interest is good), simply have not been able to distinguish this vital aspect of their livelihood and separate their loss and their identity from their parents infertility and pain and need for a child.

During recent discussion with Damian Adams, he brought up a four stage process of donor conception comprehension.  He permitted me to post his comments here.  

To understand the following we probably have to see that there were many stages that I have been through (probably about 4).  Those being:

1. A naive child

2. Mild curiosity - wanting some non-identifying information, but happy with DC

3. Increased curiosity - wanting identifying information, the first stages of mild loss (repressed), but still grateful to be alive

4. Acknowledgment of loss and the profound effects that it has

1. I used to be proud about being DC.  I was grateful, because otherwise I wouldn't have existed.  Even though I would have liked to have had some non-identifying information, it did not affect me greatly.  Perhaps I was preventing myself from feeling loss about that - I don't know (a self-defence mechanism perhaps).  I had my dad who to me at the time was my "father".

2. There was no sense of loss otherwise there would have been no way I would have even contemplated donating myself which I was pretty close to doing.  By being happy with my mode of conception (proud and grateful), there is no way that that position could coexist with a sense of loss.  

3. For a period of time when I wanted to find out non-identifying info and also identifying info (prior to the birth of -------), I had to accept that I would not even find out that info as a consequence of being alive.  So while there may have been some mild loss at that stage it was repressed because I still had to feel gratitude to the procedure that created me.  

4. It was only when I realized the true nature of my loss could I see that I did not have to be grateful and happy about being DC, and that in-fact that the losses forcibly imposed on me should be treated with contempt and anger.  

I think some people may have another stages between 3 and 4 above, but for me it was a monumental leap from mild loss that was repressed to full blow loss and anguish.

Cliches follow:

But for me and I think that it would have to apply to most others is that if you feel grateful and therefore happy that you parents who wanted you so much were given this wonderful gift by a truly altruistic man, then how can you feel loss.  

To feel any kind of loss is an acknowledgement that something is wrong with the process and that the process has caused some form of harm which does not coincide with the cliche above.  Any form of loss is a form of suffering, suffering is not the goal of altruism.

Adoptee Rights Demonstration 2009

ADOPTEE RIGHTS DEMONSTRATION BLOG

July 21, 2009

Philadelphia, Pennsylvania 

From Theresa of Ungrateful Little Bastard and Mia of Mia's Saving Grace:

We propose a one day Adoptee Rights Demonstration at the National Conference of State Legislature's Annual Meeting in Philadelphia, PA, on Tuesday, July 21, 2009.

The National Conference of State Legislatures is the largest group of its kind, the national organization of STATE LAWMAKERS, the people who DECIDE whether or not you may access your original birth certificate...OR NOT.

We propose a gathering of adoptees and all supporters of the rights of adoptees to unrestricted access to their own records of birth, representing all fifty states, a one-day rally that will be an opportunity for adoptees to demonstrate their commitment adoptee rights and to meet their state delegation.

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I urge any donor conceived individuals who are in or near Philly to attend this event, first of all, because some of the greatest adoptee rights activists will be in attendance (and who wouldn't want to meet a celebrity bastard?!?! ;o)), and because the sooner adoptees are granted unconditional access to their Original Birth Certificates, the easier it will be for donor-conceived adults to fight for a ban on anonymity and eventually retroactive access of records!  

In every location that has banned anonymous sperm donations - beginning with Sweden in 1984 - the retroactive opening of adoptee's birth certificates was granted first.  This is a pivotal fight for us, and we need to stand behind the adoptees, so that we can hope for their support when our turn comes.  

Please mark this date on your calendars!!

Surrogate motherhood raises troubling issues

Thank you Thomas Frank for saying what so many of us were thinking after reading Alex Kuczynski's story in the NYT two weeks ago.  It is utterly disgusting how pregnancy, children, childbirth, and parentage has become so commodified, and this woman just make me want to vomit, how conceited and arrogant she is, how she treats the surrogate as a human incubator, giving her little presents and treating her like you would a puppy, and probably doesn't even want to have anything to do with her baby now because all these people care about is their money.  I bet money she has a nanny, and only has this baby as a status symbol she can dress in baby armani and brag about.  People like this make me sick.....

Alex Kuczynski should be ashamed of herself.

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Rent-a-Womb is where market logic leads

By Thomas Frank

Wall Street Journal

December 10, 2008

At long last, our national love affair with the rich is coming to a close. The moguls whose exploits we used to follow with such fascination, it now seems, plowed the country into the ground precisely because of the fabulous rewards that were showered on them.

Massive inequality, we have learned, isn't the best way to run an economy after all. And when you think about it, it's also profoundly ugly.

Some people haven't received the memo, though. Take Alex Kuczynski, author of the New York Times Magazine cover story for Nov. 30, which tells how she went about hiring another woman to bear her child.

For years Ms. Kuczynski worked the plutocracy beat for the New York Times, and in her whimsical way she described the travails of the world's supermodels, the scene-making that went on at this or that high-end restaurant, and the feeling on the hard streets of Greenwich and the Hamptons.

Somewhere along the way, Ms. Kuczynski went from observer to observed. She married a hedge-fund billionaire and in 2005 was the subject of a memorable bit of plute-worship in W magazine. Here we learned about her four homes (including one on Park Avenue and one in Southampton) but mainly about her really inaccessible spread in Idaho, where everything has to be flown in: the masseuses, the meat, the guests, the yoga instructor, the chefs, and the logs that were required to restore the property's log cabins to her husband's exacting standards.

Now Ms. Kuczynski's trademark concern for the moneyed becomes memoir as she relates to us, in last week's Times Magazine, her "adventures with a surrogate mom." The story starts with Ms. Kuczynski's infertility, which is genuinely piteous, but quickly goes wrong, as she and her husband decide to hire a woman to carry their child and review applications from women with available wombs.

Surrogate motherhood has been the subject of much philosophical and political dispute over the years. To summarize briefly, it is a class-and-gender minefield. When money is exchanged for pregnancy, some believe, surrogacy comes close to organ-selling, or even baby-selling. It threatens to commodify not only babies, but women as well, putting their biological functions up for sale like so many Jimmy Choos. If surrogacy ever becomes a widely practiced market transaction, it will probably make pregnancy into just another dirty task for the working class, with wages driven down and wealthy couples hiring the work out because it's such a hassle to be pregnant.

Ms. Kuczynski is not entirely oblivious to these issues; indeed, she considers them for several poignant paragraphs before inevitably brushing them off.

It's "organ rental," Ms. Kuczynski decides; nothing worse. She is taken with the surrogate's reference to herself as an "Easy-Bake oven" -- a toy appliance -- and further describes her as "a vessel, the carrier, the biological baby sitter, for my baby." And, yes, the surrogate applicants could all use the money, if not desperately; the one who gets the job plans to use it to help pay her kids' way through college. Additionally, one of the surrogate's children, Ms. Kuczynski notes, "had been an egg donor to help pay her college tuition."

Maybe if this young woman had been donating her eggs to buy groceries Ms. Kuczynski would have understood that all this reproduction-for-hire was a product of her billionaire-centric world as surely as the Blahniks and Versace she used to trill about -- that college and surrogacy are available to people like Ms. Kuczynski and not to others because that's how our system works.

Instead she tells us, very sincerely, how much she enjoyed spending the last few months before the child arrived "by white-water rafting down Level 10 rapids on the Colorado River" -- presumably Level 10 rapids are really quality rapids -- "racing down a mountain at 60 miles per hour at ski-racing camp, drinking bourbon and going to the Super Bowl." She also does a lot of "Bikram yoga," which is presumably a really quality form of yoga.

What she doesn't tell us is even more revealing. Of the story's nearly 8,000 words, there are only three quotations from the surrogate mother. Ms. Kuczynski does not describe this remarkable woman's clothes or, really, tell us her thoughts about much of anything. About Ms. Kuczynski's own feelings and fears and cravings we get paragraph after maudlin paragraph. The one who does the labor is almost completely silent.

Then there are the photographs, already infamous: Ms. Kuczynski in a black sleeveless sheath and stiletto-heel pumps, posing next to the pregnant surrogate in khakis and a tousled pink flannel shirt. Ms. Kuczynski holding the baby on the lawn of her Southampton estate, with columns, topiary and servant. The surrogate sitting, barefoot and alone, on a beat-up porch of her house in Pennsylvania.

According to the Times's "Public Editor" column, Ms. Kuczynski objected to the pictures before the article was published. And who knows? Maybe the photographers and art directors were out to subvert her story all along. If so, they understood market relations far better than the author herself.

Philosophical argument against sperm donation

I found this on Whosedaughter's blog.  It's an entry from Alexander Pruss's blog.  Pruss is a philosopher from Baylor University, and here's what he had to say on June 5th regarding sperm donation:

Here is a valid argument:

1. At least barring commensurate reasons, it is wrong to act in such a way that one will acquire a basic and serious human responsibility that one does not plan on fulfilling. (Premise)

2. If one consensually reproduces, then one acquires a basic and serious human responsibility of parenthood for the offspring. (Premise)

3. Anonymous sperm donors consensually reproduce the offspring that comes from their donated sperm. (Premise)

4. Therefore, anonymous sperm donors acquire the basic and serious human responsibility of parenthood for the offspring. (By 2 and 3)

5. Anonymous sperm donors typically do not plan to fulfill their parental responsibilities towards the offspring coming from their donated sperm. (Premise)

6. Anonymous sperm donors typically lack reasons for the donation commensurate with the acquiring of unfulfilled parental responsibilities. (Premise)

7. Therefore, typically, sperm donors act wrongly. (By 1, 4, 5, and 6)

I suspect it's sound, too.

Please also read the discussion that followed this entry.  Alexander Pruss raises some very good points, and argues them very well.  

Familybuilder Y-DNA Testing!

Y-DNA testing can be helpful for male DC offspring who want an idea what ancestry their donor came from.  While it discovers the ancestral origins (which may or may not be accurately portrayed in the paternal lineage due to adoption, infidelity, illegitimacy, etc), it can be a last choice resort for offspring who are at a dead end in their search.  There have been documented cases of male offspring finding their biological fathers by doing Y-DNA testing, and using the surname to find the donor --- usually they know a location and profession, say a doctor in a certain city, and then search that surname for doctors in that city. Please refer to the post "Whatcha gonna do with all that junk, all that junk in your...DNA?" for a more in-depth explanation of the science behind genealogical DNA tests.

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The Genetic Genealogist: Familybuilder Announces DNA Testing

December 9, 2008

Similar to a move made by myHeritage a few weeks ago, Familybuilder has announced that it will offer genetic genealogy testing to its customers.  As a part of a launch of this new product, Familybuiler is offering both Y-DNA and mtDNA tests for only $59.95 until January 1.  After that, the price will be $89.95.

Based on the demo account, it looks like the Y-DNA test includes 17 markers.  Although this isn't many markers, $3.52 per marker is a great price.  

Familybuilder is planning to continue to develop their genetic genealogy offering: "Currently in development is the ability to create Groups around surnames, families, and other criteria as well as the ability to Compare DNA."  From the press release:

"Up to now, genealogical DNA testing for the masses has been cost-prohibitive," said David Rheins, CMO of Familybuilder.  "We are excited about the launch of Familybuilder DNA, and believe that this tool will help millions of customers better understand the origins of their heritage and ancestry.  We are very focused on developing the Familybuilder DNA product line, and have plans to roll out additional tests and future functionality, including the ability to search our DNA database to identify living relatives with whom you share DNA."

Interestingly, Familybuilder is one of the top 50 Facebook applications.  Will this motivate Facebook genealogists to enter the field of genetic genealogy?  And, if they do, will those results be available to others to compare with without using Familybuilder?

By Blaine Bettinger

I'm still here!

Just letting everyone know that it's finals week, and I'm an elf on the Cuyahoga Valley National Park's Polar Express train...and I must say, I think I'm a pretty damn cute elf!!  hehe.   

Sooo, that means you probably won't be hearing from me until at the earliest next weekend!!

I have some things I will try to update ASAP when I have some free time - including my reactions to Wayne Carp's Family Matters, and some things that have been in the media recently that I'd like to comment on.