Tuesday, January 27, 2009

IDOA 2008 Report: United States

IDOA 2008 Report: United States

While anonymous donors are still the status quo across the US, current trends in American sperm banks are seeing a significant increase in individuals and couples (primarily in the GLBT community) choosing open ID donors rather than anonymous.  This move to open-identity donors gives many offspring the peace of mind upon turning 18 to have contact with their biological father, but it actually creates two distinct classes of donor conceived persons – those who are fortunate to have been conceived from a donor who chose to be open and those who will forever be lost to half of their identity.  

The only way to resolve this two class system is to eradicate anonymous donors altogether, as many other states and countries have begun doing in the last two decades.  The year 2008 has brought significant light on donor conception and the issues surrounding gamete donation and reproductive technologies as a whole, but the United States still has a very long way to go to even begin to catch up to the rest of the world.


There have been several significant research studies completed or currently in process on donor conception and the views of adult offspring, which are slowly changing the perception of the American society to a more neutral or negative view of anonymous donors, and the impact of gamete donation on those created by these practices.

Voices of Adult Donor Offspring of Sperm Donation: Forces for Change Within Assisted Reproductive Technology in the United States

Patricia P. Mahlstedt, Kathleen R. LaBounty, and William T. Kennedy

Offspring Searching for Their ‘Donor Siblings’ and Donors: Motivations and Experiences

Vasanti Jadva, Tabitha Freeman, Wendy Kramer, and Susan Golombok

“My Daddy’s Name is Donor”: Adults Rights, Children’s Needs, and the New Meaning of Parenthood 

Elizabeth Marquardt (Upcoming – 2009)


The American news media has been very influential in assisting the movement and helping our voices be heard.  In 2008, hundreds of newspaper, magazine, and television stories across the country have featured donor conceived individuals (adults and children), sperm donors, half-sibling reunions, and searches.  Several syndicated talk shows, such as Oprah, Dr. Phil, The Today Show, and the Morning Show with Mike & Juliet, have also discussed donor conception, though often with a sugar-coated message.

Many American donor-conceived adults (and even some parents) have become more vocal, not only in both the national and local media, but also on the Internet, with several noteworthy blogs discussing the issues surrounding donor conception.  These voices are quickly becoming an integral part for educating the general public and those within the community about these issues.

Confessions of a Cryokid - http://cryokidconfessions.blogspot.com 

Whosedaughter – http://whosedaughter.blogspot.com 

Child of a Stranger – http://childofastranger.blogspot.com 

Life as a Dad to Donor Insemination Kids – http://di-dad.blogspot.com 

Legal Discrimination Concerns:

With Olivia Pratten’s case in British Columbia looming, the legal perspective of the unconstitutionality of current donor conception practice is knocking on America’s door.  In order to establish that anonymous donations 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 then we must convey that persons created by gamete donations are discriminated against by the United States under the equal-protection clause of the 14th Amendment.

Persons created from gamete donations are considered an exception to standard law of parental obligations, where children born via donor sperm are generally not considered legally entitled to a father unless their mother is 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 (See: http://en.wikipedia.org/wiki/illegitimacy).

In the 1970’s, a series of Supreme Court decisions abolished common law disabilities of illegitimacy, as being in violation of the equal-protection clause of the 14th Amendment of the United States Constitution.  However, those of us conceived from a ‘sperm vendor’ are considered an exception to this law and are still legally discriminated against.  

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 not welcome, and not a part of that family), then based on the definition of discrimination (“involves treating someone less favorably because of their possession of an attribute – e.g. sex, age, race, religion, family status, national origins, military status, sexual orientation, disability, body size/shape – compared with someone without that attribute in the same circumstances” – See: http://en.wikipedia.org/wiki/discrimination), this is surely grounds for a lawsuit.

According to Bill Cordray, in his article “Is Anonymity Constitutional” (See: http://www.donorsiblingregistry.com/DSRblog/?p=44):

“We are often told we should accept the fact that clinics are not obligated to release identifying information to us. The presumption is that the contracts drawn up by clinics or doctors are legally binding and guarantee a donor’s right to anonymity. In fact, some courts have held such contracts as invalid, as cited by Tom [Sylvester] in the Johnson v. Superior Court case (See: “A Case Against Sperm Donor Anonymity” http://donorsiblingregistry.com/legal.pdf). The donor’s right to anonymity is not codified anywhere and is simply an untested privilege invented by the infertility industry. 

Although there is an assumption of a right to the use of donor insemination, this does not mean that this right has priority over children’s rights. These contracts are not seen by individual state laws as a means to deny our access to information. At best they ensure that there will be no interference from the donor into the parental autonomy and familial privacy interests while children are under the authority of their family’s protection as minors. However, such interests disappear when a child reaches adulthood and attains individual autonomy. There is nothing in these contracts that would hold DI adults to the terms of anonymity, particularly since they were not a party to the agreement.  

The constitutionality of DI contracts is definitely questionable. This is the core of my belief in the case for abolition of anonymity.  If the contracts cannot meet the substantive due process clause of the 14th amendment, then the terms are designed to protect the identity of the man who fathers a DI child are not defensible and are therefore could be ruled “unconstitutional.”

Section 1 of the 14th Amendment:

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.

Adoption Rights Movement:

Lastly, the adoption rights movement in the United States is a growing community of adoptees, first parents, adoptive parents, human rights activists, legislators, and now donor conceived individuals.  Only five states [six after January 1st, when Maine unseals their records] in the US have unsealed records, but the growing amount of dissent among adoptees is helping to pave the road for better access.  As donor conceived individuals, we need to stand with our fellow adoptees, because the faster adoptees gain these rights, the faster donor conceived individuals will follow.  

The American Adoption Congress’s 2008 Conference in Portland, Oregon discussed donor conception, and Bill Cordray presented a talk on the parallel issues between donor-conceived adults and adoptees.  In 2009, the AAC will be held from April 22-26th in Cleveland, Ohio, and the Adoptee Rights Demonstration will be held on July 21st in Philadelphia, Pennsylvania.  We must attend these events and network with the adoption rights movement in order to gain assistance in our own movement in the United States.  

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