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Sunday, November 20, 2011

Should the U.S. Prohibit Anonymous Sperm Donation?

In the United States, a movement urging legally prohibiting sperm-donor anonymity is rapidly gaining steam. In her forthcoming article in the Georgetown Law Journal, The New Kinship (not yet up on SSRN), and in her wonderful book, Test Tube Families, Naomi Cahn is among this movement’s most passionate and thoughtful supporters. She argues for mandatory sperm-donor registries of the type in place in Sweden, Austria, Germany, Switzerland, the Australian states of Victoria and Western Australia, the Netherlands, Norway, and, most recently, the United Kingdom and New Zealand. The UK system is typical in requiring new sperm (and egg) donors to put identifying information into a registry and providing that a donor-conceived child “is entitled to request and receive their donor’s name and last known address, once they reach the age of 18.”

In my new Article, Rethinking Sperm Donor Anonymity: Of Changed Selves, Non-Identity, and One-Night Stands, forthcoming in the same issue of the Georgetown Law Review (out in print in Jan or Feb 2012 and up on SSRN now), I explain why the arguments for these registries fail, using Cahn’s Article as my jumping off point.

I demonstrate four problems with the arguments Cahn offers for eliminating anonymous sperm donation:

(1) Her argument for harm to sperm donor and recipient parents fails in light of the availability of open-identity programs for those who want them, such that she imposes a one-size-fits-all solution where it would be better to let sperm donor and recipients parents choose for themselves.

(2) Her argument for harm to children that result from anonymous sperm donation fails for reasons relating to the Non-Identity Problem. This portion of the Article summarizes work I have done elsewhere, most in-depth in Regulating Reproduction: The Problem With Best Interests, 96 Minn. L. Rev. _ (forthcoming, 2011) and Beyond Best Interests, 96 Minn. L. Rev. _ (forthcoming, 2012 and up on SSRN soon).

(3) She has sub silentio privileged analogies to adoption over analogies to coital reproduction. When the latter analogy is considered, her argument is weakened. I show this through a Swiftian Modest Proposal of a Misattributed-Paternity and One-Night-Stand Registry paralleling the one she defends for sperm donation.

(4) The argument may not go far enough even on its own terms in endorsing only a “passive” registry in which children have to reach out to determine if they were donor conceived, rather than an “active” registry that would reach out to them. If we recoil from such active registries, that is a reason to re-examine the reasons in favor of the less effective passive ones.

For the reasons discussed, despite my admiration for this paper and all of Cahn’s work, I am not persuaded by the argument for adopting a mandatory sperm-donor identification registry of the kind in place elsewhere in the world. Indeed, I think these registries should be eliminated, not replicated. At a moment in which the idea of these registries is rapidly gaining popularity and attention in the United States, I hope my dissenting voice will be heeded.

Posted by Glenn Cohen on November 20, 2011 at 10:39 PM in Criminal Law, Culture, Current Affairs, Gender, Legal Theory | Permalink


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I strongly suspect that the real reason for any such proposed ban is to enable the de facto parents of any such child to sue the donor for support -- a move which, if it happens, would both be completely unjust and would scare all potential future donors away.

The existing child-support-enforcement apparatus is evil as it stands. Having sex simply does not, morally, constitute a commitment to support a child. If a woman wants such a commitment she should insist on it BEFORE sex. That is the purpose of marriage.

Posted by: John David Galt | Dec 1, 2011 1:30:16 AM

AndyK, thanks for such a thoughtful reply. I think we are actually closer together than might seem...although we reach opposite conclusions. I agree with you that the kind of moral or social harms you envision are not contemplated as harms to the result children -- the BIRC argument my papers are aimed at deflating. Instead I would group these either under the heading of Legal Moralism and/or Virtue Ethics arguments for regulating reproduction. I don't get at those in "Regulating Reproduction: The Problem with Best Interests," but they are one of the foci of the companion paper "Beyond Best Interests" that is not yet up on SSRN but will be up there soon (and out in the Minnesota Law Review in April 2012). I am not sure you will be convinced by what I saw there, either, but at least in that work we will be going back and forth on the same terrain. Again, thanks for being so thoughtful on this.

Posted by: I. Glenn Cohen | Nov 21, 2011 2:39:11 PM

To be quite honest, as you may have intuited, I am less concerned with the subset "genealogical bewilderment" than with the overall category of social / genetic problems caused by sperm donation.

To reduce my problems to an economic level: anonymous sperm donation selects for two things that are linked in a way they are not in the adoption context (except, perhaps, in the surrogate / homosexual adoption case when one homosexual parent is the natural mother / father). First, it selects for willing donors, but this is muted because sperm services are increasingly specific in their demographic demands. Still, "fathers of test tube babies" are not representative of any natural population: they are obviously more likely to be consumerist types, motivated by money to override social taboos.

Second, and importantly, it selects at the level of donor preference, and not just at the usual bugbear "white, full head of hair, smart" level. Sperm consumers again are (1) using money to override social taboos, (2) unable / uninterested in forming organic social relationships, (3) see children as a commodity or a "right," (4) likely to see genetic parental involvement as an interference.

We're only talking about (4) right here, but the point is that if we are going to have sperm banks, we need to find ways to mitigate all the deleterious social attitudes that are likely to be perpetuated by children of sperm consumers.

Greater involvement of social services? Special classes teaching the children that "mommy may say that if you can buy it, it's ok, but that's actually wrong?"

So the "harm to children" that I'm talking about was at the level of "respect" that I noted in my comment. There may be no "harm" in the instrumental sense your paper is keyed to, but there are other harms to children. For instance, sperm donation probably selects for people that have the ethical view that sperm donation has no harm on children, selects for people that see "moral" or "social" harms as religious or disingenuous.

Posted by: AndyK | Nov 21, 2011 2:32:42 PM

AndyK -- not sure you wanted substantive engagement with your comments, but just in case:
There are some studies on "genealogical bewilderment" that are touched on in my work, but in much greater depth in Naomi Cahn and Ellen Waldman (among others') work on sperm donor anonymity, where you can find the state of the art on the empirical question.
In my paper, I want to problematize the very rights claim/harm claim you make about the children who result from reproduction, so I'll be curious to know your reactions if/when you read the work.

Posted by: I. Glenn Cohen | Nov 21, 2011 12:46:19 PM

Knowing one's father and mother is a primal part of one's self-identity. http://catholiclane.com/polish-priest-discovers-he-is-a-jewish-holocaust-survivor/

A ban on anonymous sperm donation is a good start to focusing the rights discussion more on the children and less on the sperm-mongers. The interests of children in these cases is paramount.

Should children be brought up in households with child rapists? No. Likewise should they be brought up in households where the parents do not respect them enough to (1) find out and / or (2) disclose their genetic identity? No!

Are there studies on the relative mental health of children who were told they were test-tube babies but told that they could never find out who the parent was?

Posted by: AndyK | Nov 21, 2011 11:55:10 AM

Thanks Marc, I have been a consumer and a fan of Ori's work on these problems, though most of what I have seen from him as focused on the reparations/subsequent generations problem, but it sounds from the NY Times article that he is at work on a new draft paper.
I do hope the bashing of the NY Times of his work as exactly the kind that is the problem with legal academia does not hurt him on the job market. As I show in the Georgetown and Minnesota papers, figuring out what we believe to be the right position on the Non-Identity Problem and its variants is essential to setting policy on incest, abstinence education, single parent reproduction, anonymous sperm donation, and a number of other areas.
As I take pains to point out in Regulating Reproduction: The Problem with Best Interests, for those who want to dismiss this as esoterica, the same esoterica underlies most court's (less philosophically precise) rejections of wrongful life liability. Similarly, in Rethinking Sperm Donor Anonymity, I show that courts considering whether to allow contracting out of known sperm donor support obligations have also backed their way into the problem. All this is to say that theory and practice are in dialogue...

Posted by: I. Glenn Cohen | Nov 21, 2011 10:28:59 AM

Glenn, you probably know the piece already, but Ori Herstein's work (cited in Segal's NY Times piece as an example of esoteric scholarship) has an interesting take on the non-identity problem and the subsequent wrong solution offered by George Sher (which Ori finds to be inadequate, or at least incomplete). Ori works toward a solution to the non-identity issue based on group membership, I believe. I don't know if this is useful to you, but it struck me that you are talking in your scholarship at least in part about some implications of the very problem that Ori is tackling in his own work. Marc

Posted by: Marc DeGirolami | Nov 21, 2011 10:18:05 AM

Thanks Orin and Stuart.
Stuart I think I understood your concerns, but let me know if this is not responsive.
On (1), because all the systems in place today and the ones Cahn endorse are non-retroactive, this population does not exist. That is, the entire discussion is about creating a registry going forward for all new sperm donations, so those already existing are unaffected.
On (2), I've called this situation an "imperfect Non-Identity Problem" and examined how its consequences should and should not different compared to a
"perfect Non-Identity Problem" such as a ban on gay or lesbian parent assisted reproduction, which, if successful, necessarily alters when, whether, or with whom individuals reproduce in all cases. I only flag that issue in the Georgetown piece as a possible way-out, because it gets in-depth treatment in Regulating Reproduction: The Problem With Best Interests, 96 Minn. L. Rev. _ (forthcoming, 2011), http://ssrn.com/abstract=1955292, where I examine whether the Non-Identity Problem could be evaded by drawing the line at the Perfect cases. If you have a chance to read that longer discussion I will be curious to know what you think, but my own view is that when such cases are close enough to the perfect line (as the anonymous sperm donor case seems to be), the perfect/imperfect line does not hold that much weight for me.

Posted by: I. Glenn Cohen | Nov 21, 2011 8:24:13 AM

The harm to children argument doesn't seem satisfying, even on its own terms. Grant that in the future, a ban on anonymity would prevent certain children from coming into existence at all, and therefore they (had they existed) could not have complained about anonymity (because of the non-identity argument: "absent anonymity, you wouldn't even be here, dude").

But that still leaves: 1) children who exist today -- conditional on their existence (which cannot be denied), many of them may be harmed by anonymity; 2) some percentage of children tomorrow who would have existed either under anonymity or its absence, and who are harmed by its absence. (You're not saying that banning anonymity would alter the existence of 100% of donor children . . . how could you possibly know that?)

Posted by: Stuart Buck | Nov 21, 2011 8:10:20 AM

Interesting stuff; thanks for flagging both articles.

Posted by: Orin Kerr | Nov 21, 2011 2:20:46 AM

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