BY: Solveig Baylor
Solveig is a junior at Georgetown University studying Philosophy, Economics, and Math. She is currently a managing editor for the Georgetown University Undergraduate Law Review.
Pandemic isolation has motivated thousands to search for meaningful connection, including through finding their long-lost biological parents.[1] Children conceived through Assisted Reproductive Technologies (ART) such as in vetro fertilization (IVF), surrogacy, artificial insemination, and others are often denied information about their biological origin informally by their parents.[2] Cryobanks offer known or anonymous options for donation, the latter guaranteeing that the child and his or her parents will not know the donor’s identity and vice versa.[3] Many suggest that even though donor-conceived children maintain fulfilling relationships with the parents that raised them, donor-conceived adults often indicate a hole in their identity left by their unknown biological origins.[4] Generally a child cannot communicate with the donor until 18 years of age, at which point processes vary for facilitating outreach, but both the child and donor must agree to reveal identifying information.[5] More often than not, these requests hinge on the donor’s response: a 2011 study found 82 percent of donor-conceived children would like contact with their donor.[6] The question remains of how the rights of the child are weighed against those of the involved adults.
Cryobanks, fertility organizations, and the law generally prioritize the donor’s right to privacy. The option to anonymously donate limits the human element of connection. This reduces repercussions like donor-conceived children interfering with donors’ families, parentage issues, and potential financial exploitation. Many donate to earn money for side income or when cash-strapped, the amount depending on whether they are eggs or sperm, so anonymity limits these social complexities.[7] But how far does this privately-protected right to privacy extend? In Johnson v. Superior Court (California Cryobank, Inc.), a Santa Barbara family sued California Cryobank, one of the largest and most-reputable sperm banks in the country, for not disclosing a donor’s history of kidney failure.[8] While donors fill out medical history and undergo medical tests, the family had not received any of this information. The court found that California Cryobank’s protection of the donor’s privacy was not absolute, and that the rights of the child’s health and the parent’s redress take priority.[9] This triumph helps balance the scales of donor-conceived children’s rights.
Case law and academia have broadened to include a wide range of children’s rights. Questions of custody through family and contract law have guided this ethical minefield without establishing broad, constrictive rulings.[10] Legal scholarship has addressed complicated questions of citizenship like in the case of international surrogates or ART babies born abroad to American citizens.[11] Answers to these questions depend on the U.S. state, causing families to strategize the birthplace of their child. While citizenship questions helped some, it does not answer the question of the child’s right to know his or her biological origin.
This “right to know” has gained international academic and legal attention. Austria, the United Kingdom, Sweden, and New Zealand have required clinics to record donor medical and identifiable information.[12] Sweden was the first country to ban anonymous donations in 1984, stipulating the child has the right “when sufficiently mature” to know the donor’s identity.[13] Numerous studies have shown, as a result, that parents of donor-conceived children disclosed more often and earlier, cultivating a culture of openness and recognizing the child’s right to know.[14] British law allowed donor-conceived adults to obtain donor information from the national Human Embryology and Fertility Authority register beginning in April 2005.[15] At the same time, all clinics obtained identifiable information from donors, meaning those donor-conceived adults could receive this information starting in 2023.[16] The United Nations Committee on the Rights of the Child ratified the Convention on the Rights of the Child, in which Article 7 contains a child’s right to know their parents.[17] With reference to donor-conceived children, the Committee interprets this as the right to know biological origin.[18] This is supported by Article 8 which secures the child’s right to “preserve his or her identity, including nationality, name, and family relations.”[19] The European Court of Human Rights protects this right to a lesser degree, contending this right to identity “is not absolute” as this may conflict with a family’s private rights.[20]
A child’s right to know still faces barriers in some countries. As of March 2020, Japan lacks any statutory laws regulating sperm or oocyte donations.[21] Only anonymous donors may be used in Singapore, Slovenia, and Vietnam.[22] Anonymity persists culturally in France and Greece since they see the parent-child relationship as purely socially-constructed.[23]
While ART varies in legality by state in the U.S., there is no federal regulation in the field.[24] The Food and Drug Administration dictates the medical information cryobanks must collect from donors, but anonymity is not within its purview.[25] While not as strong of a step as the UK or Sweden, Washington state mandated in 2011 that donor-conceived children have access to identifiable donor information once they reach the age of 18 unless the donor opts out, as opposed to the industry standard of opting in.[26] Contrastingly, states like Oregon and Virginia ratified legislation recognizing that donors and donor-conceived children have no duties or rights to each other.[27] Still, the majority of state legislation concerns questions of parentage, leaving the question of donor anonymity and the child’s rights unanswered.[28]
While largely left unanswered, asking the question of the child’s right to know his or her biological origin is a win in itself. A donor’s privacy remains rightfully important, but how does it stack up against a child’s longing to know where her distinct nose comes from? Or why she laughs the way she does? Or why she is the family’s black sheep? IVF law weighs the rights of children and adults, often unintentionally prioritizing some over others to the child’s detriment. For ART and certainly beyond, the voiceless must have a voice within the law.
[1] Lisa Selin Davis, Pandemic Sparks More People to Hunt for Their Birthparents, Long Lost Relatives, The Washington Post (September 19, 2020), https://www.washingtonpost.com/health/covid-search-for-birthparents/2020/09/18/def0a132-e7c9-11ea-97e0-94d2e46e759b_story.html.
[2] Child Rights International Network, A Children’s Rights Approach to
Assisted Reproduction 13, (2018) https://archive.crin.org/sites/default/files/a_childrens_rights_approach_to_assisted_reproduction_0.pdf.
[3] For example, see the California Cryobank website https://www.cryobank.com/how-it-works/donor-types/.
[4] Emma O’Friel, Donor-Conceived Adults: A Lifelong Search for Identity, The Irish Times (July 22, 2017), https://www.irishtimes.com/life-and-style/health-family/parenting/donor-conceived-adults-a-lifelong-search-for-identity-1.3161451.
[5] California Cryobank, supra note 3.
[6] Ashley Fetters, Finding the Lost Generation of Sperm Donors, The Atlantic (May 18, 2018), https://www.theatlantic.com/family/archive/2018/05/sperm-donation-anonymous/560588/.
[7] Julie Marquis, Court Limits Anonymity of Sperm Donors, Los Angeles Times (May 20, 2000), https://www.latimes.com/archives/la-xpm-2000-may-20-mn-32035-story.html.
[8] Id.
[9] Johnson v. Superior Court (California Cryobank, Inc.) 95 Cal. Rptr. 2d 867, 878 (Cal. Ct. App. 2000).
[10] Jenna Casolo et al., Assisted Reproductive Technologies, 20 Geo. J. Gender & L. 313, 330-337 (2019).
[11] Kristine S. Knaplund, Baby Without a Country: Determining Citizenship for
Assisted Reproduction Children Born Overseas, 91 Denver U. L. Rev. 335 (2014); Scott Titshaw,
Sorry Ma’am, Your Baby is an Alien: Outdated Immigration Rules and Assisted Reproductive
Technology, 12 Fla. Coastal L. Rev. 47 (2010).
[12] Rich Vaughn, Is Sperm Donor Anonymity a Thing of the Past?, Int’l Fertility L. Group (October 30, 2020),
[13] Brigitte Clark, A Balancing Act? The Rights of Donor-Conceived Children to Know Their Biological Origins, 40 Ga. J. Int’l & Comp. L. 619, 635 (2012).
[14] Id. at 635-636.
[15] Id. at 636.
[16] Id. at 637.
[17] Id. at 625.
[18] Id. at 626.
[19] Id. at 627.
[20] Id. at 630.
[21] Yuri Hibino & Sonia Allan, Absence of Laws Regarding Sperm and Oocyte Donation in Japan and the Impacts on Donors, Parents, and the People Born as a Result, 19 Reprod. Med. Biol. 295, 295-298 (2020).
[22] Howard W. Jones & Jean Cohen, Fertility and Sterility S28 (2007).
[23] Id.; Clark, supra note 13, at 634.
[24] Vaughn, supra note 12.
[25] Id.
[26] Bonnie Rochman, Where Do (Some) Babies Come From? In Washington, a New Law Bans Anonymous Sperm and Egg Donors, Time (July 22, 2011), https://healthland.time.com/2011/07/22/where-do-some-babies-come-from-in-washington-a-new-law-bans-anonymous-sperm-and-egg-donors/#:~:text=In%20Washington%2C%20a%20New%20Law%20Bans%20Anonymous%20Sperm%20and%20Egg%20Donors,-By%20Bonnie%20Rochman&text=Traditionally%2C%20the%20identities%20of%20egg,offspring%20to%20ever%20make%20contact.
[27] Clark, supra note 13, at 638.
[28] Id.
