Wednesday, December 31, 2008

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.

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.

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.


Paragon2Pieces said...

hi lindsay, what is your take on whether a donor should be able to obtain the identifying information of a child that results from their donation (once the "child" reaches majority)? i reviewed tom sylvester's arguments against allowing donors access to this information in the article that you linked to, but i am not wholly persuaded.

specifically, i am thinking of a situation where a donor, later in life, develops a very serious, genetic disease. this donor may want (and in my opinion should be obligated) to provide his/her biological offspring with this information so that any biological offspring will have a complete "family" medical history. in some ways, the biological child's (or the biological child's social parents') ability to receive this information seems crucial to the interests of the child. is allowing donors access to biological offsprings' identifying information necessary to protect donor conceived childrens' interest in access to a complete and up to date "family" medical history? i think so. it doesn't seem that we can rely on fertility clinics or egg/sperm banks as permanent conduits of this type of information.

i would love to hear your opinion.

Lindsay said...

Very interesting question.....I focused that post on the child's right to know the donor but I forgot that the donors (like birthparents), often become curious as well.

I agree that if a donor develops a serious condition later in life that it is his responsibility to let his biological children know. After age 18, I don't see any problem, other than a child who doesn't know he or she is a donor conceived could get quite the shock if their "father" turns up on their front door.

I think that the donor should be able to contact the bank and be assured that the bank will contact each offspring's family, but unfortunately we know that is also not happening.

Let me think about this some more and I might either post another comment, or do an entire entry on that idea. Thanks for bringing it to my attention :o)