ART & a child’s right to know their identity
Contents
Assertion: A child has the right to know and be raised by its biological parents ......................................... 2
Rabbi Einat Ramon, “In Israel, A Call to End Anonymous Sperm Donation” ............................................ 2
British Columbia Supreme Court: sperm donor anonymity violates Charter of Rights and Freedoms .... 3
Prof. Margaret Somerville: Children’s human rights to natural biological origins and family structure .. 5
United Nations: Convention on the Rights of the Child............................................................................ 6
Who are a child’s parents? ........................................................................................................................... 7
Secular Law ............................................................................................................................................... 7
When legal paternity is established ...................................................................................................... 7
When the presumption of a husband’s paternity is factually wrong ................................................... 7
When a legally recognized ‘parental project’ pre-empts the legal parenthood of the biological
parents .................................................................................................................................................. 8
In case of adoption................................................................................................................................ 8
Jewish law ................................................................................................................................................. 9
When the biological father is living at the time of conception: ........................................................... 9
When the biological father died before conception/implantation and when the genetic father is not
Jewish: ................................................................................................................................................... 9
When the child is the product of a levirate marriage ......................................................................... 10
When the gestational mother and genetic mother are different....................................................... 10
When the genetic father and ‘social father’ are different .................................................................. 11
In case of adoption.............................................................................................................................. 12
The right to know ........................................................................................................................................ 13
Secular Law ............................................................................................................................................. 13
Reasons for recognition ...................................................................................................................... 13
Concern of disparate impact on different forms of families .............................................................. 14
Concern of availability of donor gametes ........................................................................................... 15
Who recognizes it and how does it work? .......................................................................................... 16
Jewish Law .............................................................................................................................................. 17
Preventing prohibited sexual relationships ........................................................................................ 17
Concern of birthing a Jewish child into non/insufficiently Jewish family ........................................... 18
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Assertion: A child has the right to know and be
raised by its natural parents
Rabbi Einat Ramon, “In Israel, A Call to End Anonymous
Sperm Donation”
by Elana Maryles Sztokman, on The Sisterhood Blog
http://blogs.forward.com/sisterhood-blog/138603/#ixzz1Td6226ZF
https://haaretz.co.il/hasite/spages/1229740.html?more=1
…In a recent op-ed in Haaretz, Ramon calls for making illegal anonymous sperm
donation and all forms of surrogacy, and replacing it with an exclusive Jewish sperm
bank filled only with the seed of Jewish men who died childless…It’s particularly
shocking to hear Ramon, the first Israeli woman to be ordained as a rabbi and the first
woman to hold the position of Rabbinical Dean at the Schechter Rabbinical Seminary in
Israel, defend so passionately the theory of gender difference…
…Ramon goes on to criticize any system in which the identity of the biological parent is
unknown to the child, on the grounds that it negates the child’s right to know his or her
identity. She writes:
Jewish sources that were written thousands of years ago did not recognize the
global fertility industry that uses the bodies of poor women as objects and denies
children their identities. The bible and midrash did, however, warn that
manipulating the ways of the world in the area of fertility and family structure
will bring an end to humanity, no less.
In order to remedy this situation, Ramon proposes that the Knesset put in place a law
that “recognizes the value of knowing the identity of one’s biological parents,” which she
says is a value among “the absolute majority of religions and sectors in Israeli society.”
In a bow to single Jewish women, who she says “suffer from a shortage of Jewish men
(in Israel, due to war and in the Diaspora, due to assimilation),”
Ramon suggests that a sperm bank should be established for the Jewish people that
enables donations of Jewish men who died or were killed, in order to create
a ‘shidduch’ between the family of the deceased and the mother who will raise the
deceased’s offspring.” …Ramon argues that this is better than anonymous donations
because it will eliminate the issue of mamzer — bastard children — although she fails to
account for the idea that a voluntarily donation is preferable to a forced one.
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British Columbia Supreme Court: sperm donor
anonymity violates Charter of Rights and Freedoms
Sperm donor anonymity overturned by B.C. court, CBC News, May 19, 2011
http://www.cbc.ca/news/canada/british-columbia/story/2011/05/19/bc-sperm-donorruling.html
The B.C. Supreme Court has struck down provincial legislation that protected the
identity of sperm donors. The court also prohibited the future destruction of any records
and ordered the province to draw up new legislation in line with the Charter of Rights.
Lawyers for Olivia Pratten had argued that the existing rules discriminated against the
children of sperm donors, and the court ruled in Olivia Pratten's favour on Thursday by
striking down a section of the B.C. Adoption Act.
In the decision, Justice Elaine Adair wrote that the rights of the child must be protected
in sperm donation, much like they are protected in cases of adoption in B.C.
Olivia Pratten succesfully sued the B.C. government to force changes in the B.C.
Adoption Act to allow the offspring of sperm, egg and embryo donors to find out who
their donors are. (Jonathan Hayward/Canadian Press) "I conclude, based on the whole
of the evidence, that assisted reproduction using an anonymous gamete donor is
harmful to the child, and it is not in the best interests of donor offspring," wrote Adair…
The ruling gives the province 15 months to enact conforming changes to the B.C.
Adoption Act that are in line with the Charter of Rights.
Adair found the Act was unconstitutional because it treats adopted children differently
from children of sperm donors. Adopted children are provided information about their
biological parents, whereas the children of donors are not.
Pratten v. British Columbia (Attorney General), 2011 BCSC 656
http://www.courts.gov.bc.ca/jdbtxt/SC/11/06/2011BCSC0656cor1.htm#_Toc293471863
[297] “Security of the person” is probably the broadest of the s. 7 interests. In R. v.
Morgentaler, [1988] 1 S.C.R. 30, at p. 56, Dickson C.J.C. (for himself and Lamer J., as he
then was) defined an infringement of the right to security of the person as “state
interference with bodily integrity and serious state-imposed psychological stress.” The
right to security of the person protects both the physical and psychological integrity of
the individual
[303] In my opinion, that evidence supports the conclusions, relevant to the issue of
security of the person, that, despite changes in practices since the early 1980s:
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(a) some donor offspring do not have access to what might be important
background medical information that would assist in early identification of
illness or disease and in treatment, and do not have access to this information
even in circumstances of medical necessity;
(b) some donor offspring do not have access to a biological parent’s medical
history, and as a result are impaired in identifying or treating genetic conditions;
(c) without further biological testing, some donor offspring do not have the
information required to determine if another individual is a biological halfsibling, and are therefore at risk for inadvertent consanguinity;
(d) some donor offspring do not have access to important information about
their paternal heritage, culture, religion and other elements that are important to
the formation of their identity, and which can be responsible for psychological
distress.
[304] Therefore, as a result of the lack of this information, some donor offspring
(probably including Ms. Pratten and Ms. Deacon) are at risk – and may be at serious
risk – with respect to the security of their person. I say “some” donor offspring because,
based on the evidence of current practices at fertility clinics, at least some of this
information is now being collected and is preserved “indefinitely.” How long it will be
collected and remain preserved is unknown. However, Ms. Pratten does not need to
show that all donor offspring are in the same position. It is sufficient at this stage if
some donor offspring on some occasions are at serious risk with respect to their security
of the person. Based on Dr. Lauzon’s evidence, lack of medical information can mean
that an individual is unable to obtain timely health care for a condition that is clinically
significant to that individual’s current and future health. That, in my view, is sufficient
to engage security of the person.
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Prof. Margaret Somerville: Children’s human rights to
natural biological origins and family structure
(Symposium on The Jurisprudence of the Family: Foundations and Principle, 2010)
http://www.law2.byu.edu/organizations/marriage_family/past_conferences/may2010
/drafts/CHILDREN%20RIGHTS.pdf
The connection among adoption, the use of new reproductive technologies, and samesex marriage is that they all unlink child-parent biological bonds. Each context raises
one or more of three important issues: children’s right to know the identity of their
biological parents; children’s right to both a mother and a father, preferably their own
biological parents; and children’s right to come into being with genetic origins that have
not been tampered with, that is, “designing” our children should be prohibited.
The impact of ARTs on children born through their use, other than that on their physical
health, has been largely ignored; it has been readily assumed that no major ethical or
other problems arise in creating children from donated gametes, and that opposition to
the creation of these children is almost entirely based on religious beliefs. Such
assumptions have been dramatically challenged in the last two years as the first people
born through the use of these technologies reach adulthood, become activists, and call
for change. They describe powerful feelings of loss of identity through not knowing one
or both biological parents and their wider biological families, and describe themselves as
“genetic orphans.”
They ask, “How could anyone think they had the right to do this to me?” The ethical
doctrine of anticipated consent is relevant in deciding what we owe ethically to children
brought into being through ART’s. Anticipated consent requires that when a person
seriously affected by a decision cannot give consent, we must ask whether we can
reasonably anticipate they would consent if able to do so. If not, it’s unethical to
proceed. So, ethically, we must listen to what donor-conceived adults are saying about
gamete donation to decide whether we can anticipate consent to it.
They – and adopted children – tell us of their profound sense of loss of genetic identity
and connection. They wonder: Do I have siblings or cousins? Who are they? What are
they like? Are they “like me”? What could I learn about myself from them? These
questions raise the issue of how our blood relatives help each of us to establish our
human identity.,,,In short, from what many donor conceived adults tell us we cannot
anticipate consent to anonymous gamete donation – or, indeed, to gamete donation
itself…
…The right to bear children should not include the right to deny children at least the
chance, when being conceived, of meeting their biological parents. Conceiving children
with gametes from a dead donor, as an Australian court authorized, denies them this
opportunity. In that case, as is so often true, the judge considered only the rights and
wishes of the adults involved…
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United Nations: Convention on the Rights of the Child
Article 7
1. The child shall be registered immediately after birth and shall have the right from
birth to a name, the right to acquire a nationality and. as far as possible, the right to
know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their
national law and their obligations under the relevant international instruments in this
field, in particular where the child would otherwise be stateless.
Article 8
1. States Parties undertake to respect the right of the child to preserve his or her identity,
including nationality, name and family relations as recognized by law without unlawful
interference.
2. Where a child is illegally deprived of some or all of the elements of his or her identity,
States Parties shall provide appropriate assistance and protection, with a view to reestablishing speedily his or her identity.
Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents
against their will, except when competent authorities subject to judicial review
determine, in accordance with applicable law and procedures, that such separation is
necessary for the best interests of the child. Such determination may be necessary in a
particular case such as one involving abuse or neglect of the child by the parents, or one
where the parents are living separately and a decision must be made as to the child's
place of residence.
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Who are a child’s parents?
Secular Law
When legal paternity is established
Paternity Establishment in New York State
http://www.lawny.org/index.php/advocate-page-attorney-resources-119/38-publicadvocate-information/171-paternity-for-advocates
When a child is born to a married woman, the law assumes that her husband is the
child's father.
However, when a couple is not married, the biological father is not considered the legal
father until paternity is legally established. Establishing paternity gives certain legal
rights to the child. It also gives certain legal rights and responsibilities to the father.
There are two ways to establish legal paternity: one requires the filing of a petition and
the entry of a court order (usually done in Family Court), the other requires a written
acknowledgment signed by each of the parents and recorded with the child's birth
certificate…
A father who wishes to protect his rights and who is unable to establish paternity in this
way may register with the state's "Putative Father Registry". This will guarantee his right
to notice if anyone else seeks to establish paternity of the child, or if an adoption of the
child is sought. However, it will not legally establish his paternity or give him any sort of
custodial or visitation right. To acquire these legal rights, he would need to file a
paternity petition with Family Court.
When the presumption of a husband’s paternity is factually
wrong
How well does paternity confidence match actual paternity? Evidence from
worldwide nonpaternity rates
Anderson, Kermyt G. 2006. "How well does paternity confidence match actual
paternity? Evidence from worldwide nonpaternity rates." Current Anthropology, 48(3):
511-518.
A sample of 67 worldwide nonpaternity rates is divided into three categories: high
paternity confidence (N = 22, mostly from genetic studies), low paternity confidence (N
= 31, containing men who contested paternity through paternity tests), and unknown
paternity confidence (N = 14, mostly unpublished studies). The results show that men
with high paternity confidence have very low rates of nonpaternity (median = 1.7%),
while men with low paternity confidence have much higher levels of nonpaternity
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(median = 29.8%). When men with low and unknown paternity confidence levels are
combined, the median nonpaternity rate is 3.3%.
When a legally recognized ‘parental project’ pre-empts the legal
parenthood of the biological parents
Civil Code of Quebec
http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.
php?type=2&file=/CCQ/CCQ_A.html
538. A parental project involving assisted procreation exists from the moment a person
alone decides or spouses by mutual consent decide, in order to have a child, to resort to
the genetic material of a person who is not party to the parental project.
538.1. As in the case of filiation by blood, the filiation of a child born of assisted
procreation is established by the act of birth. In the absence of an act of birth,
uninterrupted possession of status is sufficient; the latter is established by an adequate
combination of facts which indicate the relationship of filiation between the child, the
woman who gave birth to the child and, where applicable, the other party to the parental
project.
This filiation creates the same rights and obligations as filiation by blood.
In case of adoption
Adoption - Legal Consequences And Availability – Free Encyclopedia
http://family.jrank.org/pages/39/Adoption-Legal-Consequences-Availability.html
Two standard models of adoption exist. In one model, found in Anglo-American
jurisprudence and other legal systems, the effect of adoption is that the biological
parent's rights and duties end with respect to the adoptee. These rights and duties are
acquired by the adoptive parents. Thus, the biological parents cease to owe the adoptee
a duty of support, and this duty is imposed on the adoptive parents. Similarly, normally
the adoptee loses the right to inherit from a biological parent who dies leaving no will,
but acquires such a right to inherit from the adoptive parent.
In the second model, a complete severance of the legal relationship between the adoptee
and his or her biological parent does not occur. Instead, as in Turkey, the adoptee
acquires some rights and duties with respect to the adoptive parent, but retains others
with respect to a biological parent.
In some countries, both models may co-exist. This occurs notably in Europe, as in
Bosnia and Herzegovina and Portugal... The model used in any given adoption may
depend on the purpose behind the adoption or the circumstances of the adoptive and
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biological parents and the adoptee. For example, in Scotland (Sutherland 1997), when a
biological parent remarries and the adoption is by the stepparent, the legal relationship
with the other biological parent may not terminate completely even though a legal
relationship with the adoptive parent is established. This approach is often followed in
the United States. Thus, the adoptee may be entitled to support from both the biological
parents and the adoptive parent. Similarly, the adoptee may be entitled to inherit from
both the adoptive parent and perhaps his or her relatives, as well as from the biological
parents and their relatives.
Jewish law
When the biological father is living at the time of conception:
The Establishment of Maternity & Paternity in Jewish and American Law, Michael J.
Broyde
http://www.jlaw.com/Articles/maternity2.html
…In summation, Jewish law maintains that paternity is established irrevocably as
belonging to the natural parent. In the typical case in which the same person is both the
genetic and biological father, Jewish law mandates that such a person is the legal father.
In the case of artificial insemination, where there is no biological father but only a
genetic father, almost all decisors maintain that Jewish law defaults to the principle of
genetics to establish paternity. Furthermore, most of the commentators hold that in the
absence of any intercourse there can be no illegitimacy. A significant minority of the
commentators disagree and maintain that illegitimacy can be established through
genetic relationships, absent intercourse.
When the biological father died before conception/implantation
and when the genetic father is not Jewish:
The Use of Cryopreserved Sperm and Pre-embryos In Contemporary Jewish
Law and Ethics, Richard V. Grazi, MD, Joel B. Wolowelsky, PhD
Retrieval of Sperm from Brain-Dead Individuals
Ohl notes that brain death is an increasingly common situation in which
electroejaculation for retrieval of sperm is requested. Such requests have come from the
wives (widows) or girlfriends of the brain-dead person as well as from family members
who want to preserve the "bloodline" through some subsequent artificial insemination.
It is doubtful if such a procedure could be allowed halakhically, as it is forbidden to
derive any personal benefit from a corpse. The only exception is a life-saving procedure,
such as transplanting organs; retrieving sperm would not fit under this rubric…
Post-mortem use of Cryopreserved Sperm
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Halakha, unlike American secular law, does not recognize the right of a court to create
legal parental relationships between genetically unrelated individuals. Adoption may
establish legal obligations on the parties, but it does not establish halakhic filial or
sibling relationships. On the other hand, Halakha recognizes paradigms in which
genetic realties are considered irrelevant. For example, conversion is considered such a
radical personal transformation that previous legal bonds and relationships are
halakhically severed. Theoretically, siblings who convert could marry each other
(although this was prohibited rabbinicly for reasons of public propriety). In the case of
an intermarriage, the non-Jewish genetic father is not considered the
halakhic father of a child born to his Jewish wife. Such a child is Jewish and
is considered halakhically fatherless.
Some halakhists have argued that physical intercourse is a sine qua non for establishing
halakhic relationships, suggesting that a child born through either artificial
insemination or in vitro fertilization has no legal relationship to its genetic father.
However, the current consensus is that such a child has the same relationship to its
genetic father as if the conception had been effected through natural intercourse.
Nonetheless, Yisraeli, one of Israeli's leading contemporary halakhists, points out that
when cryopreserved sperm is used, the child has no relationship to the
father if the insemination is done after his death. He subsequently extended this
ruling to frozen embryos implanted after the genetic father had died.
When the child is the product of a levirate marriage
Deuteronomy 25:5-6
5 If brethren dwell together, and one of them die, and have no child, the wife of the dead
shall not be married abroad unto one not of his kin; her husband's brother shall go in
unto her, and take her to him to wife, and perform the duty of a husband's brother unto
her.
6 And it shall be, that the first-born that she beareth shall succeed in the name of his
brother that is dead, that his name be not blotted out of Israel.
When the gestational mother and genetic mother are different
Fertility Treatment Gets More Complicated, Wall St. Journal, May 14, 2010,
Gabrielle Birkner
http://online.wsj.com/article/SB10001424052702304798204575183784267219258.
html?mod=WSJ_Opinion_LEFTThirdBucket
…at the January conference in Jerusalem of the Puah Institute, Rabbi Mordechai
Halperin said that the pendulum of rabbinic opinion has swung toward conferring
maternity on the egg donor…
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In recent years, some well-known rabbinic decision makers—Yosef Shalom Elyashiv,
Avraham Sherman and the late Meir Brandsdorfer, among them—have issued rulings
that refer to the birth mother as an "incubator" or to her womb as an "external tool."
Though these decisions come from Israel, they hold sway with many ultra-Orthodox
Jews elsewhere.…
One of America's most prominent Orthodox rabbinic arbiters, Rabbi Moshe Tendler
disagrees. He believes recent rulings out of Israel are misguided: "Genetics provide
only the blueprint, and for the next nine months the work is done by the gestational
mother," Rabbi Tendler says. "While the gestational mother is in labor, the egg donor
could be on the beach in Miami." Still, Rabbi Tendler says he performs a handful of
conversions every year of babies born to Jewish women using non-Jewish eggs; just so
there's no doubt about the child's religion…
An Orthodox Israeli woman in Jerusalem who gave birth to two children using eggs
from a non-Jewish donor in Cyprus told me she feels betrayed by rabbinic rulings that
favor genetics. "What's a horror for us is that the rabbis told us one thing"—that the
children born to her would be Jewish—"and now some rabbis are saying something
else.... Either it's kosher or it's not."
Conservative Responsum “Surrogate Parenting” by Rabbi Aaron L. Mackler,
approved in 1997
As I argue elsewhere, halakhic sources indicate that maternal identity is determined
primarily by gestation and birth. A woman who gives birth to a child is identified as that
child’s mother. Indeed, this represents the sole position authorized by the committee on
Jewish Law and Standards with regard to maternal identity.
When the genetic father and ‘social father’ are different
Conservative Responsa, “In Vitro Fertilization” by Rabbi Aaron Meckler,
approved 1995
In the the case of sperm donation, as Dorff argues, the sperm donor is the genetic father,
and should be viewed as the father both with regard to technical issues of Jewish
identity and in order to prohibit marriage (or sexual relations) with genetic relatives. At
the same time, the social father of a child conceived using donor insemination, like the
social father of an adopted child, is “the ‘real’ father in most significant ways,” and is
accorded by Jewish tradition the special status of one who “does right at at all times.”
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In case of adoption
Various Aspects Of Adoption, Rabbi Dr. Melech Schachter, JHCS, 4, 1982.
“Whosoever rears an orphan in his own house is considered by Scripture as if he
fathered the child ... Whosoever teaches Torah to the son of his companion, Scripture
considers him as if he begat him."
The lofty practice of rearing someone else's child with parental devotion is moral
conduct on the highest level. Consequently, the adopted child is ethically bound to
display the highest regard for his adoptive parents and hold them in the highest esteem,
possibly even surpassing the one displayed by children towards their own parents,'
However, from the viewpoint of Jewish Law, adoption does not constitute natural
relationship. Should the adopted child smite or curse his adoptive parents, he will not be
subject to the stern punishment reserved for a child acting this way toward his natural
parents.' All forbidden incestual relationships apply only to relatives by nature, not by
adoption. If the adoptive father is a Kohen or a Levi it does not make the adopted child
also a Kohen or a Levi. When the adoptive parent dies, the adopted child should
obviously mourn the loss in a proper fashion, including the recitation of the kaddish.
But he is not subject to all the minute regulations governing the mourning of a child for
his natural parents. Nor does an adopted child free his adoptive mother from "chalitzah"
in case his adoptive father dies without issue…
If he prefers to be called up [to the Torah] by his adoptive father's name, the word
"hamegadlo" should be added to make sure that should he ever have to go through a
divorce proceeding the Get would be valid. The additional of lmegadlo (who raised him)
is particularly essential if the adoptive father is a Kohen or a Levi.
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The right to know
Secular Law
Reasons for recognition
De-anonymising sperm donors in canada: some doubts and directions,
Angela Cameron, Vanessa Gruben, and Fiona Kelly, 26 Can. J. Fam. L. 95 2010
Much of the debate around de-anonymising sperm donors centers on the right of donor
offspring to know their genetic origins. "Knowing ones genetic origins" is defined
variably to include a right to access health and psychosocial information, to know the
identity of the gamete donor, or even to meet and form a relationship with the donor.
This "right" is not without critique. For example, the right to know one's genetic origins
has been criticized by feminist scholars on the basis that it promotes genetic
essentialism. They argue that in countries that have de-anonymized sperm donors
"children may attempt to find their 'parents' not necessarily because of a 'natural' desire
to know their origins, but because such a desire is constructed, recognized and
legitimized by the law"…
Revealing Your Sources: The Case For Nonanonymous Gamete Donation,
Michelle Dennison, 21 J.L. & Health 1 2007-2008
Another compelling reason for granting donor-conceived offspring access to identifying
information is the argument that information about one's biological and genetic history
is considered essential to the child's mental health. A useful comparison to make when
considering this argument is between donor-conceived children and adopted children.
Adoption research has shown that strong feelings of insecurity can arise in adoptees
because they lack information about one or more biological parent. One researcher
defined adoptees as "genealogically bewildered" and argued that "a genealogically
bewildered child is one who either has no knowledge of his natural parents or only
uncertain knowledge of them. The ensuing state of confusion and uncertainty
fundamentally undermines his security and affects his mental health."
Courts have recognized this "bewilderment" in cases where adoptees have been granted
the right to access identifying information about their biological parents because the
adoptee has demonstrated that the lack of this information has caused him or her
psychological harm…
This definition of "genealogical bewilderment" easily extends to donor-conceived
children because they too are lacking information about one or more biological parents.
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While there has not yet been the same amount of research conducted on children who
are the product of gamete donation as there has been on adoptees, a number of studies
that have been conducted have reached the same conclusion as those that have studied
adoptees: namely, that for their own wellbeing, donor-conceived children need to know
about their background.
"I'm here to tell you that emotionally, many of us are not keeping up," said one
teenager, whose biological father was an anonymous donor. "We didn't ask to be
born into this situation, with its limitations and confusion. It's hypocritical
of parents and medical professionals to assume that biological roots won't
matter to the 'products' of the cryobanks' service, when the longing for a
biological relationship is what brings customers to the banks in the first
place.
Concern of disparate impact on different forms of families
De-anonymising sperm donors in canada: some doubts and directions,
Angela Cameron, Vanessa Gruben, and Fiona Kelly, 26 Can. J. Fam. L. 95 2010
De-anonymising sperm donors creates unique concerns for women-headed families that
must be addressed before we proceed with abolishing or fuirther regulating sperm
donor anonymity… While deanonymisation is typically understood to permit donor
conceived offspring, and possibly donors, to access identifying information about each
other once the offspring reach the age of majority, there is a strong movement proposing
a complete ban on anonymity at any stage. This means that women-led families are
vulnerable to having previously anonymous sperm donors inserted into their family
against their wishes before their children reach the age of majority and choose such a
relationship themselves.,,
Perhaps the most significant reason why the de-anonymising of sperm donation is a
concern for women-led families is that Canadian family law is ambiguous about whether
the sperm donor, once known, will have parenting rights that may be exercised contrary
to the wishes of the lesbian parents or single mother.' Lesbian couples and single women
experience the effect of this uncertainty in different ways…
While second parent adoptions and two mother birth certificates have provided nonbiological mothers with some degree of legal protection, neither adequately meets the
immediate post-birth needs of lesbian couples. Adoptions cannot be completed until the
child is six months of age and birth certificates are always rebuttable by someone with a
"better" typically biological, claim to the child. Removing the choice of an anonymous
donor without appropriate legal reform, risks invalidating homo-nuclear, lesbian-led
families.
While lesbian couples have some legal instruments available to them, single mothers by
choice have virtually no legal protection from the intrusion of a donor. In fact, courts
have been largely unwilling to recognize the right of a woman to parent alone and have
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routinely treated known donors as legal fathers. Single mothers by choice are thus
particularly vulnerable if donor anonymity should cease.
Concern of availability of donor gametes
Regulating Reproductive Technologies: Timing, Uncertainty, and Donor
Anonymity, Gala Bernstein, 90 B.U. L. Rev. 1193 2010
I provide an in-depth analysis of the data from three representative jurisdictions that
prohibit anonymity: Sweden, the Australian state of Victoria, and the United Kingdom.
The data, although at times inconsistent, reveals a disconcerting overall picture. These
jurisdictions suffer from significant shortages in donor gametes accompanied by long
wait-lists for recipients. I posit that although the prohibition on donor anonymity is not
necessarily the only factor leading to a shortage in donor gametes, it appears to have
played an important role in all three jurisdictions…
Revealing Your Sources: The Case For Nonanonymous Gamete Donation,
Michelle Dennison, 21 J.L. & Health 1 2007-2008
Anonymity proponents worry that a lack of anonymity could discourage potential
donors… However, there has been no supporting proof that there would be such a
burdensome drop in gamete availability in the first place. In fact, looking at the results
in other countries, the opposite is proving true.
While a number of the countries that now mandate disclosure experienced an initial
decline in donors once the anonymous donations were banned, many now report that
donor numbers returned to the pre-ban rates) Sweden, for instance, as the first country
to ban anonymous donation, noted a sharp decline in both the number of donors and
the demand for donor sperm, but saw these numbers completely reverse after just a few
years.
Even the studies touted by critics of identity disclosure can be called into question
because the studies only took into account the attitudes of people who were recruited
specifically as anonymous donors. Donors recruited specifically as nonanonymous
donors would obviously not have the same reservations as those who donated under the
promise of anonymity.
What many of these countries have noted is a change in the type of donors that come
forward: where donors in the past were mostly young and single, donors now tend to be
older, married and with families of their own…
Additionally, even if there were a permanent reduction in the availability of donor
gametes, which again seems unlikely, it may be difficult to prove that the reduction rises
to the level of an unacceptable burden on reproductive choice. Ending anonymous
donation does not remove this as a reproductive choice altogether; it merely regulates it.
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ART & a child’s right to know their identity
Who recognizes it and how does it work?
Beneath the rhetoric: the role of rights in the practice of nonanonymous
gamete donation, Lucy Frith, Bioethics ISSN 0269-9702 Volume 15 Number 5/6
2001
Internationally, the vast majority of countries continue to endorse anonymous gamete
donation. However, in recent years there has been a discernible trend towards allowing
children access to identifying information about their gamete donor. Sweden, Austria,
Switzerland, Victoria Australia and Holland have all recently changed their laws to make
gamete donation non-anonymous. New Zealand, Western Australia and Southern
Australia are all in the process of reviewing the situation with a view to introducing nonanonymous donation…
The use of rights based arguments has been employed by various legislatures to support
policies of non-anonymous gamete donation. Austria's Medically Assisted Procreation
Act 1992 interpreted Article Seven of the United Nations Convention on the Rights of
the Child, that includes the right to know one's parents and Article Eight of the
European Convention on Human Rights, the right to respect for family life, to mean that
sperm donation should not be anonymous as this would contravene such rights…
The source of such rights in current conventions is clearly contentious, most
significantly because the conventions on child and human rights were not written with
gamete donation in mind. The Council of Europe stated, `it is not possible at the present
moment to draw decisive arguments from the Convention for the Protection of Human
Rights and Fundamental Freedoms either in favour or against the anonymity of donors.'
The right to know one's parents clearly depends on the definition of `parent'.
…in order for donor offspring to exercise their right to this information they have first to
know that they were conceived from a donated gamete. Without being told, it is unlikely
that such children would find out the circumstances of their conception. Most children
would not think to question whether or not they were genetically related to their
parents. Gamete donation is still also a sufficiently rare occurrence for children who
suspect that they are not genetically related to one or more of their parents to not
necessarily consider the possibility that they were conceived from a donated gamete.
Despite this, none of the countries, which have adopted a policy of non-anonymous
donation, have formalised a system for ensuring that children know how they were
conceived; the decision to inform the child of the nature of its conception is left to the
parents….
…The most obvious solution, if it is felt donor offspring have a right to know their
genetic origins, is to institute some formal mechanism which ensures that all donor
offspring know the true nature of their conception. So far, the emphasis in this debate
has almost solely been on how to ensure that the parents tell their child about the nature
of its conception. This notion of enforcing telling is, understandably, seen as unduly
intrusive into the family's private life and has understandably been rejected in all cases…
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ART & a child’s right to know their identity
However, perhaps a better model to use is the one that operates with adoption in
countries, such as England, where adopted children have the right to know the identity
of their birth parents. Here, as we have seen, the child's right to information about both
the circumstances of conception and the identity of its birth parents is ultimately
guaranteed by the legal right to both the adoption certificate and original birth
certificate. Following this example, if it is believed that donor offspring also have the
same right to know the identity of their genetic parents, then they could be issued with
both a birth certificate, that recorded the details of their `social parents' (as they receive
now) and, at the same time, a donor certificate that would record the details of their
gamete donor.
Revealing Your Sources: The Case For Nonanonymous Gamete Donation,
Michelle Dennison, 21 J.L. & Health 1 2007-2008
…there are presently at least eighteen states that do grant records access to donorconceived children for good cause shown." However, the vast majority of states
presently have statutes that permit adoptees access to sealed adoption records, which
include identifying information, for good cause shown.
Jewish Law
Preventing prohibited sexual relationships
Open Vs. Closed Adoption: Social Work And Jewish Law Perspectives,
Moshe A. Bleich, Msw, C Sw, Journal of Jewish Communal Service. Jewish Communal
Service Association of North America. June 1997
One of the most prominent halachic decisors of our generation. Rabbi Moses Feinstein,
also addressed the issue of open versus closed adoption. In a responsum dated 1957,
Rabbi Feinstein discusses the issue without citing any of the earlier noted sources. Rabbi
Feinstein declares that if the adopted child is of Jewish parentage it is imperative that
the identity of the natural parents not be suppressed. Rabbi Feinstein notes that,
according to Jewish law, the issue of an adulterous or incestuous liaison is a mamzer
(bastard). In order to permit marriage to a person of legitimate birth it is necessary to
determine the child's lineage. Knowledge of the identity of non-Jewish natural parents is
not necessary in order to avoid problems of mamzerut or consanguinity.
More significantly. Rabbi Feinstein contends that, even if it is known that the mother
was unmarried and that the child was not born of an incestuous relationship and hence
is entirely legitimate, it is nevertheless necessary to determine the identity of the father.
Basing himself on the comments of the Talmud, Yevamot 37b, and on Shulhan Arukh,
Even ha-Ezer 2:11, Rabbi Feinstein asserts that it is necessary for a child to know the
identity of his natural parents in order to ensure that the child will not inadvertently
enter into an incestuous union with a sibling at some future time.
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ART & a child’s right to know their identity
…,Nevertheless, despite the halachic cogency of the concern expressed by Rabbi
Feinstein, the adopted child need not have actual knowledge of the identity of his or her
natural parents. As Rabbi Feinstein himself observed, the basic requirements of Jewish
law may be fulfilled by having a responsible indiidual maintain a record of the identity
of the birthparents of the adopted child. This would enable the adopted child to consult
the person privy to that information before entering into a marriage. With such an
arrangement in place, the identity of the biological parents need never be revealed to the
child. In order to satisfy the requirements of Jewish law, it is sufficient for the child to
know that there is no barrier to the marriage on grounds of incest.
Concern of birthing a Jewish child into non/insufficiently Jewish
family
Halakhic Alternatives In Ivf-Pregnancies: A Survey, Yitzchok A. Breitowitz, The
Jewish Law Annual, Vol. XI
http://www.jofa.org/pdf/uploaded/1518-OWUK0769.pdf
Donation of a preembryo to a non-Jewish couple (or to the IVF clinic, which, at least in
the United States, will probably give it to a non-Jewish couple) cannot be countenanced,
for if in fact the resulting child is Jewish, in light of the egg donor, he ought not be raised
as a non-Jew. Moreover, even on the majority view that the child is non-Jewish, in light
of his gestation, birth, or both, within the body of a non-Jew, embryo donation may be
prohibited on the grounds of "giving birth to a child for idolatry.' It is also possible that
if donation of the embryo will produce a child who is halakhically non-Jewish, as most
would maintain, the Jewish sperm donor may be in violation of a different Torah
prohibition, that against impregnation of a non-Jew. Finally, even if such a child has
dual maternity and is a "half Jew, half Gentile," it would still be forbidden to have him
raised as a Gentile, as his Jewish half is obligated to observe the commandments.
Donation of a preembryo to a Jewish couple raises additional problems. At minimum, it
would, of course, be improper to donate the embryo to a couple who will not raise the
child according to the laws of the Torah. Even assuming the best case, an observant
infertile couple, donation raises serious questions of adultery and mamzeirut
(illegitimacy).
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