The news has been rife with crazy stories and serious ramifications of sperm donations that went awry. As I previously discussed, most sperm banks don’t check donor backgrounds or run tests beyond those required by the FDA. And many couples don’t even go through sperm banks at all. Instead, they opt for Craigslist donors who offer their services without any testing or oversight. Unsurprisingly, these situations pose numerous traps for donors, donor-conceived children, and their families.
A separate controversy often arises in this context. Is it better for sperm donation to be done anonymously, or is better for the intended parents to know the identity of the sperm donor? The question is a controversial one. And there are arguments on each side, as well as deeply held convictions by advocates in this field.
Anonymous Sperm Donation – Pros and Cons
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The market norm in the United States has been, and continues to be, that sperm banks offer donor sperm anonymously. This has long been the standard policy in order to entice potential donors that they can donate their genetic material freely without fearing parental complications. These complications could include concerns about legal, social, or emotional issues down the road. Recipients of the sperm are equally assured that the anonymity protects them and their future offspring from a donor (who is, in fact, a biological parent) unexpectedly appearing in their lives later.
Right of the Child
Advocates of disclosure contend that children have a right to know their biological origins. In some ways, the situation is comparable to adoption. In that context, arguments emerge over whether adoptions should be completely closed, such that adopted children never learn the identity of their birth parents.
In the U.S., a common trend is for sperm banks is to have the option, or even require, sperm donors to agree to an “open identity” policy. This does not mean that the donor’s identification is known to the recipients immediately, but that the donor agrees to have his identity released upon a donor-conceived child reaching 18 years of age. This is thought to satisfy concerns that the child has a right to know his biological ancestry.
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Certain countries, the U.K. among them, have made it a right for a donor-conceived child to receive information on his or her donor at the age of 18. So sorry blokes, but you can’t “Brexit” from this eventual right of your child to learn your name.
Disincentive to Donate
On the other hand, many opponents of such policies argue that they have a chilling effect on quality donors being willing to donate. Anonymous sperm banks in the U.S., for instance, claim that they see an uptick in customers seeking U.S.-donated sperm from countries like the U.K. after disclosure regulations are enacted. Further supporting evidence for this view can be found in a number of surveys. One survey of Danish sperm donors found that less than 25 percent would donate again if their identity was no longer fully protected. Unless something is rotten in the state of Denmark, this is a powerful and cautionary figure.
Right of Intended Parents to Make an Informed Decision
We have recently seen litigation over a sperm bank’s duty to verify information provided by donors, as well as their obligation to perform medical testing beyond that required by the FDA.
For the moment, sperm banks in the U.S. have no obligation to confirm the assertions of the sperm donors. As a consequence, claims related to a donor’s IQ or royal bloodline (R+L=J!) are passed on to recipients without verification. And recipients, having no identifying information on the donor, have no way to confirm or deny the information provided.
Is there such a thing as perfect anonymity? Wendy Kramer, the founder of the Donor Sibling Registry, is perhaps one of the most outspoken opponents to gamete donation anonymity. Aside from agreeing that there is natural desire and right for children to know where they came from, she argues that true anonymity is an illusion.
Kramer’s own son, Ryan, was conceived with the use of a donor. Later, when Ryan sought information about his biological father, the sperm bank was unhelpful. However, when Ryan submitted an at-home commercial DNA test (the likes of which are increasing in popularity with companies like 23andMe and AncestryDNA), he received information on his genetic paternal line and even his genetic father’s likely last name. The last name, combined with the donor profile his mother received from the bank — including basic information about his education — made it possible to locate the donor with a simple internet search. Of course, not every case will lead to this result.
In an ideal world, I would allow recipients and donor-conceived children to have full information as to such a vital part of their existence. But ultimately, I recognize the value in encouraging donors to donate without fear of becoming known. Many couples and individuals depend on donors to fulfill their dreams of having children. Indeed, to the extent children are able to piece together the identities of their biological fathers even with donor anonymity, it’s possible recipients and donor-conceived children are currently experiencing the best of both worlds: donor-perceived, but illusory, anonymity.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at [email protected].