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Assisted Reproduction

Government Mandated Disclosure For Egg & Sperm Donation?

Apparently there is a school of thought out there that birth certificates should reflect the names of the genetic contributors rather than the birth parent and her husband (or whomever she identifies as the father). In other words, if a couple suffering from infertility were required to use the services of an egg and/or sperm donor, the name of the gamete donor would appear on the birth certificate — not the birth mother and/or her husband. Professor Julie Shapiro is debating this issue with a visitor on her blog and I encourage you to take a look.

While I will come back and visit this issue at a later date, the bottom line for me is that the government has no right to mandate disclosure. The issue of disclosure is between parent and child and I do not believe a compelling state interests exists that justifies government intervention in this area. This is a classic slippery slope situation and the fundamental rights to privacy and procreative freedom should make this argument a non-starter. Birth certificates do not say “genetic parent”. They either say “parent”, “mother” or “father”.

I find it interesting that the argument on Professor Shapiro’s site came up as it relates to an egg donor’s name appearing on the birth certificate. For decades, no one has argued that a sperm donor ought to be identified as a baby’s father. In fact, most states (and countries) have a presumption that the husband of a woman who gives birth to a child is the presumptive father and his name appears on the birth certificate — even if he is not the genetic parent. Just to give a quick example, in HS v. Superior Court , the California Court of Appeals held that in a contest between presumed fathers, the biological father does not automatically prevail against the mother’s husband…. Rather, the court must weigh all relevant factors, including biology in determining which presumption is founded on weightier considerations of policy and logic.” What made this case so interesting was that the biological mother had an affair which resulted in the pregnancy and the court ultimately determined that the legal father was her husband, not the man who impregnated her.

No question disclosure is a critically important issue that impacts all parents utilizing ART. There is no one-size-fits all answer however about what to tell your child and when to tell it. Having this information be contained on a public record is invasive of both the parents and their child’s privacy rights. For me, this an issue between the parents and their child and not one to be mandated by Big Brother.


18 comments for “Government Mandated Disclosure For Egg & Sperm Donation?”

  • Almamay

    They muted this subject in the UK a couple of years ago. I think it is an appalling idea. First birth certificates and then what? Will donor conceived children be treated as second class citizens. It’s wrong. I hope it never happens.

    • I’m afraid this is a battle that will not ever go away anytime soon. While some who support mandatory disclosure are well intended, others with ulterior agendas are hitching their wagon to this in the hopes that it will reduce the number of people who utilize ART.

      • L Carden

        At least one answer would be to go back to blood testing before a couple can marry so as no donor conceived children will marry a sibling.

        • Very practical and minimally invasive way to address that issue.

  • Thanks for sharing about the government decission.

  • And yet another wonderful discussion, Andy. As professionals who work with egg donors, I am sure most of us will agree that if placing the name of the donor on birth certificates became legally mandated, many prospective donors would very likely decline participating in the process. In my experience, and I am expecting that you have, for the most part, experienced the same, donors are not interested in being identified as parents, they are motivated by empathy and compassion to help others achieve that status.

    • I absolutely agree with you Amy. I suspect it will also serve as a deterrent for Recipients who may choose not to have a child because of the forced invasion of their privacy.

  • Marilynn Huff

    Hi, my name is Marilynn. I’m the one having that conversation with Julie, but she misquoted me – I did not say that the names of egg providers should be printed on the birth certificates of those women’s offspring.
    What I said is that the space for mother on the birth record should either say Anonymous Donor ID #XXX Release of Parental Authority on file, or put the name of the woman that gave birth down as mother but with a big fat check box that says NOT MATERNALLY RELATED TO CHILD Donor ID and release of parental authority on file etc etc.

    I understand anonymity is not going away. I also understand that its important for the state to start keeping track of how many offspring legitimate donors are producing because the records maintained of human reproduction are growing in inacuracy every day due to ART. Absolutely same for sperm providers. I feel no differently. At least those people did sign as the parents of their someday to be born offspring and voluntarily relinquished their rights. That paperwork needs to be filed with the state and with the birth record of the child. My concern is that birth records of children whose parents were anonymous gene providers name people who are not either maternally or paternally related.

    I know that birth certificates do not say Biological Mother and Biological father; that is because the state will not certify a person as mother or father unless it believes them to be the biological parents of the child named on the certificate. There is no alternate definition of Mother it means maternally related and Father means paternally related. There is a presumption by the State that a woman that witnessed to give birth is maternally related to the child she delivered. If a woman meets that criteria the state will presume her claim of maternal relatedness is true and it will certify a birth record that names her as mother. The presumption that she is maternally related is based on a mistake of fact and maternity could in theory be disestablished with DNA evidence just as a presumption of paternity could be disestablished with DNA evidence. I’m well aware that there have been cases where the presumption of paternity and maternity have been held up despite DNA evidence to the contrary, but you should be well aware that there are other cases where it was disestablished by DNA evidence which is consistent with federal guidelines for states for settling disputes on paternity and maternity. They do ultimately leave it up to the state but that is the recommendation.
    The point is every other child in this country is identified as the biological offspring of the parents whose genes are reproduced in its body before someone unrelated can be granted the title of either mother or father.
    When people achieve the state’s presumption of maternity or paternity when there is no maternal or paternal relationship the state is certifying a mistake of fact. Now sometimes that mistake may be unintentional and sometimes it may be downright deliberate.
    Convincing the state that you are biologically related by meeting the state’s criteria to achieve that presumption is fine, if you are biologically related, but if you know your not and don’t tell them so you are allowing the state to believe something that is not true so that they will certify that it presumes there to be a biological relationship where one does not exist.

    Really shady.

    • Thank you for visiting and sharing your thoughts, Marilynn. Needless to say, you and I disagree.

      I am curious as to why you believe the state has an interest in tracking the number of offspring produced by a particular donor. Beyond the obvious concern about siblings becoming romantically attached, I am interested to see if you believe there is another policy interest that would justify such state involvement. Also, to be consistent, how would you handle the situation of a woman who had a one-night fling with a man and, with his consent, elects not to identify him on the birth certificate, seek any kind of support from him but instead raise the child as a single parent? Should the state get involved there? Would you also outlaw any abandonment procedures?

      There are also a number of presumptions in the law that many feel are antiquated. One of them is the marital presumption. These laws were passed decades ago — long before IVF existed. Lawmakers never contemplated the possibility of one woman giving birth to a child genetically related to another. In fact, this has caused a conflict throughout the United States as some states will recognize the genetic mother as the legal mother on the birth certificate while others will recognize the gestational carrier. Yet other states will recognize neither and instead place the name of the Intended Mother on the birth certificate (in scenarios where a Gestational Carrier and an Egg Donor were used). Relying upon these presumptions lead to a variety of disparate and unjust results because the law has failed to keep pace with technological advances and evolving mores.

      Where we really disagree is on your conclusion that “every child in this country is identified as the biological offspring of the parents whose genes are reproduced in its body before someone unrelated can be granted the title of either mother or father.” Factually, this is incorrect. Perhaps you desire that would be the rule of law adopted universally across the United States but it is a gross misrepresentation of the law. For decades, Sperm Donor Acts throughout the United States have afforded full and sole legal rights to the husband of the woman who delivered a child as a result of a sperm donation cycle. Furthermore, many states recognize egg donation which clearly demonstrates an acknowledgment that the birth mother is not always the genetic mother.

      With all due respect, you are mistaken about a generic presumption of genetic consanguinity. Perhaps you believe that ought to be the law, but basing your argument on such a mistaken premise renders your ensuing argument fallacious.

      • Marilynn Huff

        Actually my views are pretty simple. I have no desire to see ART outlawed and I don’t seek to see laws changed to limit anyone’s access to it either. I would like to see existing law changed so that those who have not relinquished their parental rights over their own offspring in writing are not 1) denied the right to be informed of the birth of their offspring and 2) prevented from exercising their parental rights over their own offspring. There are mistakes and deliberate acts by persons within the fertility industry that result in surprise offspring for people who never intended to relinquish their parental rights. Those people are not protected by current laws that say women are the mothers of the children they give birth to or that husband’s are always the father’s of children their wives give birth to. Those that purchase eggs and sperm from people who voluntarily relinquish their rights should have no problem having that fact documented – those people hopefully don’t have any desire to be deceptive and have themselves appear to be genetically related to the child anyway – they could still retain the rights of mother/father/parent while being noted as not genetically related to the child in question.

        The issue of disclosure is really not for the people raising the child anyway – they might feel uncomfortable discussing the fact they are not related and this would be a fraudulent misrepresentation of fact. The truth is the truth. I’m personally less concerned with disclosing the identity of people who are trying to be anonymous than I am concerned with people who might wish to be recorded as a child’s original parents – birth parents the kind that have met requirements to establish a presumption of maternity and paternity based upon a mistake of fact. Ohio now has a law where the presumption of paternity/maternity is much more easily rebutted if it is not also supported by genetic testing that alligns with the presumption. This is also more consistent with requirements for state participation in federal programs that require states to have a presumption based on 90% or greater chance of paternity based on genetic testing.
        So much of the voluntary admission of paternity and even the presumption that the woman is maternally related could be based on a mistake of fact and that mistake could cost someone their child say if they hired a gestational surrogate who skipped town and delivered the child and tried to raise the child as if it were her own. Those laws are not fair. The marital presumption is not fair. If DNA can be used to establish maternity and paternity under any circumstance it should be the basis for determining it in all circumstances. Laws should be revised to aknowledge voluntary relinquishment and then in the absense of voluntary relinquishment recognize the right of the person who did not agree to give their child up. Certainly there is nothing wrong with making ART something that is safe for people to involve themselves in. People should know if their offspring are born even accidentally to others – people should know if they give birth to a child whose parent did not intend to give up their right to raise them.
        I’m not so radical as I appear on the surface.

  • Marilynn Huff

    A non ART example of misleading the state would be black market adoption. If a woman buys a baby and convinces two friends to sign saying they witnessed her give birth and she and her husband would be presumed the biological parents. If the child were another race she could just say “one night stand” to avoid my preferred anonymous donor data filed with the birth registration

    She met the criteria to establish the presumption by lying. Yes she met the criteria but NO she’s not the mother and her husband is NOT the father. They just lied and convinced the state it was probably true.

    What about their privacy? Who freaking cares about their privacy? The rest of us that make babies have no privacy when it comes to being identified as the parents of our offspring, what makes people who use ART so special? Oh that’s right, lots of money.

    • I am afraid I do not understand your point. It is illegal to buy and sell children. Under your hypothetical, all parties would be criminally culpable as they should be. Moreover, no legal presumption would cover the scenario you described.

      As for your last question, the answer is the Constitution. There is a fundamental right of privacy and quite frankly no one has a right to know what you are doing in your bedroom or in your physician’s office absent some compelling state interest. Where do you draw the line? Should the state require doctors to submit a list of patients who have STDs so it can be published by the government?

      I really think the issue for you is the definition of a parent. It seems that you define the parent as the person who contributed genetic material. I suspect many more people would define the parent as the person who raised, loved and nurtured the child.

      • Marilynn Huff

        Of course nobody has a right to enter your bedroom but we don’t have a right to represent that we are related to someone when in fact we are not. When a person gives birth to their genetically related child, I assure you there is no privacy; every possible detail about the woman and her family medical history is recorded in addition to the male who is suppose to be the father – only a small portion of that information appears on the childs birth record, but it all goes off to the federal government that uses that information and studies it – there is no privacy for someone who is related to a child there should be no privacy for someone who is not related to a child either. Of course the experience of the woman who gestates the child is also relevant and should be recorded but she should be recorded in addition to the child’s genetic mother so that statitions have an accurate picture of the child’s genetic vs gestational circumstances. Genetics and the gestational environment are both equally important to document. Pretending that they are one in the same when they are not would provide a very incomplete picture of the child.

      • Marilynn Huff

        If the senario you are referring to is where I parallell black market adoption to ART – yes, I know its illegal to purchase people – but it happens and and a woman who buys a baby and wants to be recognized as its mother need only produce witnesses to a home birth. I was trying to show how a woman can get named as the mother of a child she is not related to by stealth that black market adoption and ART are very similar that way only its outright legal with ART and I think that is inconsistent with other laws. Makes no sense.

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  • Marilynn Huff

    As good an idea as that is, an even better idea would be for states to confirm maternal and paternal connections before certifying birth records. Participation in federal programs requires states to confirm its presumption of maternity and paternity in some instances. It seems foolish that the state is really only sure of its presumptions some of the time. That means only some children can rely on the state’s presumption – the rest can’t.

    Blood testing before marriage is helpful – but might be a bit late; in this day and age the deed is likely done already. I think most people would rather not even start dating a blood relative if they had a choice. Its helpful to know what they look like for that reason.

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  • livelybrowsers

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