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The New KinshipConstructing Donor-Conceived Families$

Naomi R. Cahn

Print publication date: 2013

Print ISBN-13: 9780814772034

Published to NYU Press Scholarship Online: March 2016

DOI: 10.18574/nyu/9780814772034.001.0001

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(p.137) 8 Regulating for Connection

(p.137) 8 Regulating for Connection

Chapter:
(p.137) 8 Regulating for Connection
Source:
The New Kinship
Author(s):

Naomi Cahn

Publisher:
NYU Press
DOI:10.18574/nyu/9780814772034.003.0009

Abstract and Keywords

Most donor-conceived people are interested in learning more about the donor and any half-siblings who were conceived through use of the same donor. There are numerous issues as well as potential approaches to the question of how to promote these connections. This chapter discusses two different types of solutions: one set of proposals facilitates donor-conceived families finding each other; and a second concerns legal links, or the possibility of more formal legal recognition, between families through, for example, expansion of coverage of family and medical leave laws. These new forms of regulation are part of the paradigm shift away from viewing donor-conceived families and their communities as scientific and medical constructs and instead viewing them as relational entities.

Keywords:   donor-conceived families, legal recognition, regulation, relational entities, family

Regardless of family type, most donor-conceived people are interested in learning more about the donor and any half-siblings who were conceived through use of the same donor. There are numerous issues—and potential approaches—to the question of how to promote these connections. This chapter discusses two different types of solutions: one set of proposals facilitates donor-conceived families finding each other; and a second concerns legal links, or the possibility of more formal legal recognition, between families through, for example, expansion of coverage of family and medical leave laws. These new forms of regulation are part of the paradigm shift away from viewing donor-conceived families and their communities as scientific and medical constructs and instead viewing them as relational entities.

I. Finding Families

Once the decision is made to help families find one another, the question is how to do so. The most realistic solution involves some form of a databank. A (p.138) databank might be placed on two intersecting axes: mandatory or voluntary, private or public. The term “voluntary,” in turn, has two different aspects: clinics can participate voluntarily and choose whether to provide information; and/or donors/offspring can participate voluntarily, so that matches occur only when there is a mutual desire for contact, without any required disclosure of identity when, for example, the offspring reaches a certain age.

These can, in turn, be expanded to four specific options on how to proceed:

  • do nothing, and continue with the private system that we have (recognizing the possibilities and limits of registries like the Donor Sibling Registry or the ones established by members of the industry);

  • establish a national voluntary databank with standards, and with an administrative board composed of stakeholders, including donor offspring, donors, recipients, and the fertility industry, with private funding;1

  • develop a state-based voluntary or mandatory databank; or

  • develop a national mandatory or voluntary databank.

The optimal outcome, for numerous reasons, is the final one, the development of a national mandatory databank, where offspring over the age of eighteen can obtain access to information, and to which gamete banks and fertility clinics must contribute information, including data about live births.

While the fertility industry has a strong stake in ensuring the effectiveness of such a registry2 and an interest in administering it, there are numerous other stakeholders who must be involved. Private solutions depend on voluntary compliance, so an industry-based registry could not ensure universal reporting and record keeping. Consider that less than 20 percent of fertility clinics comply with the voluntary industry-established guidelines designed to establish parameters for the number of embryos transferred into women under the age of thirty-five.3 Moreover, if the industry insisted on maintaining control of the registry, parents, donors, and offspring could be shut out of decision making. Wendy Kramer, somewhat more cynically, suggests that “[a] national registry that is set up, run, and governed by the sperm banking industry is only a fearful reaction to the possibility of the FDA imposing its own regulations and will only serve to protect this industry’s own best interests.”4

To begin the national process, Congress needs to enact legislation requiring that fertility clinics, sperm and egg banks, and physicians’ offices maintain records for each child born through donor gametes—egg, sperm, and embryos—and guaranteeing that gamete offspring have the right to access (p.139) those records. Governmental mandates can ensure widespread participation and can effectively impose sanctions on entities that do not report. Such a registry could fit within the oversight system already operated by the federal government over the fertility industry. The Centers for Disease Control and Prevention (CDC) collects and publishes information annually on the pregnancy rate of individual fertility clinics pursuant to the Fertility Clinic Success Rate and Certification Act of 1992;5 the most recent report weighed in at 574 pages.6 The federal Food and Drug Administration (FDA) has issued extensive regulations governing the testing and safety of gametes.7

One alternative to either the fertility industry or the federal government operating the registry might be state implementation.8 Indeed, Washington State has taken the first step. Under a 2011 law, anyone who provides sperm or eggs to a fertility clinic in the state must also provide identifying information and a medical history.9 While that is, in fact, a customary practice for most fertility clinics, another part of the law allows children born from donated gametes to return to the fertility clinic when they reach the age of eighteen to request the identifying information and the medical history. Although the donor can file a disclosure veto that prevents the clinic from revealing the identifying information, the donor offspring will still be entitled to the medical information.

The Washington state legislation is a start at recognizing the need for a gamete registry, but it is flawed. First, it appears to apply only to donors in Washington state, so Washington state residents who use donors in other states are not subject to the law. While there is an argument that any child who is donor conceived—regardless of whether the gametes were provided to a clinic in Washington—can request information, there is a strong argument that the law would not cover those children. On the other hand, if the donation occurred in Washington, there does not seem to be a limit on where the offspring must live. Second, the donors can sign an affidavit of nondisclosure that forbids the release of any identifying information (although that affidavit does not apply to nonidentifying medical information).

The Washington law helps to show the problems with a piecemeal approach, rather than a uniform, one in which all states would have the same laws. There are four specific problems with the state-by-state approach. First, even if uniform legislation is developed, states might modify the legislation prior to enactment, so the registration and disclosure requirements could vary dramatically. Second, children might not know the state in which their parents obtained gametic material and underwent fertility treatment, and so might need to engage in searches of multiple state registries. Third, even if states attempted to coordinate their databank systems, this would require yet another oversight (p.140) body to ensure the necessary cooperation. Finally, rather than establishing one system for information collection and retention, all fifty states would have to set up their own systems, causing a potentially overwhelming amount of duplicative work. A federal-level structure could more efficiently and effectively implement any large-scale collection of information and oversight of the process.10

1. Models

There are different models for a federal registry. One set of options assumes that the decision has been made to guarantee limited disclosure in the future, while a second set of options provides only for voluntary registration. Within the first set of options, depicted in figure 8.1, the most desirable outcome mandates the collection of information on future gamete donations, as well as any information, including donors’ identity, that exists on past donations. A second option would mandate the collection of similar information moving forward, but would not require the identities of past donors. A final option would mandate the collection of identifying and other information prospectively, but would not require information on past donations, although it could be provided voluntarily.

The second, and less desirable, set of options would not require prospective identity disclosure. This would satisfy the fertility industry; the American Society for Reproductive Medicine is decidedly against mandated disclosure.11 Some have suggested model legislation that would require the state or fertility clinics to maintain records concerning the identity of gamete donors and recipients, but would permit donors to choose to remain anonymous12 or would require only the release of medical and genetic information, not identifying information.13 This differs only slightly from the status quo, under which consumers can choose identity-release donors, and clinics make medical information available.

Advocates argue that people prefer anonymous donation, and this set of proposals preserves freedom of choice for consumer-parents, protects donor privacy, and prevents against too much heavy-handed government regulation. Nonetheless, it does not go far enough. Any proposal that continues to permit donor anonymity under any circumstance is inadequate because it does not recognize the offspring’s needs for information, nor the donors’ and recipients’ needs for closure and connection.

Actual implementation of the registry might be modeled on the Human Fertilisation & Embryology Authority (HFEA), which operates pursuant to an enactment of the British Parliament.14 While the HFEA is administered by the government, a U.S. national databank could be operated with federal (p.141)

(p.142) funding and a congressional mandate. The board for the databank could be composed of stakeholders from the donor-conceived community, including parents, children, and donors, the fertility industry, and regulators. Information would remain private, except to the donor, the offspring, and the gamete recipients. The HFEA system allows children to check whether they result from donor gametes. Donors might also be required to update their information when the child turns eighteen. And, when donor-conceived people reach the age of majority, they should be able to receive identifying information about their donors. A “no contact” statement would be helpful as donor-conceived people considered what to do with the information.

Allowing for the release of a donor’s identity recognizes that biology is not everything, but that a child’s identity develops through multiple sources. Releasing this information does not change the identity of the child’s parents, because the law must guarantee that donors cannot assert parental rights based on their status as donor; in the case of known donors, if the donor signs a contract providing for contact with the child, or if there is some other basis—such as functional parenthood—then, of course, the donor may be able to use these other legal mechanisms for establishing rights.15 Legal certainty concerning the rights—or lack thereof—of donors must accompany the establishment of a registry in order to protect the interests of the recipient parents in the stability of their new family and to clarify the donor’s responsibilities to any resulting child.

2. Forward and Backward

A final issue concerns the retroactive/prospective nature of a registry. It is important to acknowledge that permitting access may disrupt the expectations of some donors and recipients who have relied on continued secrecy; it appears to negate past choices by the donors and the recipients. And, it limits future choice: neither recipients nor donors will be able to choose anonymity. Other jurisdictions that have abandoned anonymity have not required retrospective application of the new laws due to fears of infringing settled expectations even with the benefit of granting rights to offspring.

Mandating the release of identifying information might be contrary to agreements between donors and sperm banks or fertility clinics.16 Nonetheless, in other contexts, courts and legislatures have reformed or struck down agreements that are deemed to be contrary to public policy or in violation of constitutionally protected rights.17 In the adoption context, several states have provided that regardless of private agreements, adopted adults will receive access to information about their birth parents.18 Indeed, as in other areas of (p.143) family law, the interests of adults and their settled expectations are subject to override based on public policy concerns, including a child’s best interests or other reasons underlying the change in controlling law.19 When states have allowed adoptees access to their original birth certificates, they have done so retroactively. Even beyond the best interests of the child, other societal interests justify mandatory disclosure, including removing the stigma of infertility and fostering the acceptance of alternative families.

Nonetheless, difficult issues remain. Retroactivity in the donor world differs from the abolition of anonymity in adoptions; the state has always been involved in establishing the parameters of adoption, while it has had much less involvement when it comes to donating gametes, which have typically involved private contracts between a donor and a bank. Respecting donors means respecting their rights to retain the anonymity under which they agreed to donate. Respecting donor-conceived offspring, however, means ensuring their rights to access information about their biological heritage. Moreover, while contractual interests are subject to strong protections, donor familial rights are based on a state-created status. As in the adoption cases, the state may justifiably, carefully, and under certain circumstances change this status.

While I advocate retrospective application, I recognize that this may be politically even more difficult than prospective disclosure. An alternative, albeit second-best, solution involves establishing a national voluntary database that might collect information on past donor conception practices based on donor identification numbers as well as registrants’ DNA (see figure 8.1). When donors and offspring mutually consent to disclosure, the database would facilitate the contact. Donor siblings could use the same national voluntary database to find one another, or a separate one focused only on siblings could be established. Both the Netherlands and the United Kingdom have implemented donor-sibling registries.20 The UK DonorLink, which began with government funding, acts as an intermediary once a match is made through the site, contacting all parties to ensure that there is mutual consent to the release of information.21

Prospectively, the issues are easier: a new system could guarantee that all involved in the donor process are made aware through mandated counseling of the changing aspect of disclosure. All donor records would still remain sealed, except in the limited circumstance of allowing an offspring access to information.

For multiple reasons, the United States should move toward a mandatory databank that would collect information on donor gametes. All clinics and sperm banks should be required to report certain data. Sperm banks should provide information on each donor, including number of “donations,” as (p.144) well as identity. Clinics should provide comparable data on egg and embryo donors, just as they already do on the number of pregnancies and births. There may be no need to include egg and embryo banks or recruiters because use of eggs or embryos requires a clinic’s involvement.

To ensure the security of this information and heightened protection against hacking, the registry would be required to establish sophisticated encryption protocols. Second, donors could keep their identities secret, but only until any future offspring reached the age of eighteen, at which time the offspring could be granted access to the identifying information. In recognition of the donors’ interests, donors could file a no-contact preference form, indicating their desire not to be contacted; in recognition of the offspring’s interests, the identifying information would nonetheless be disclosed (together with the existence of the no-contact form). Some countries permit disclosure at an earlier age, and some Australian states allow disclosure of some information upon consent of the donor and the parents.22

In addition, the government should establish a national, federal voluntary registry that would allow for connections among family members prior to offspring reaching the age of eighteen.23 States that have developed such a system for adoptees typically require a consent from at least one biological parent and the adult adoptee (adoptive parents may be able to consent if the adopted person is still a minor) before the disclosure of any identifying information. The Donor Sibling Registry is an example of a mutual-consent registry in the gamete world that is already in existence and that works in a similar way—the key is voluntary registration by the two (or more) parties that produces the matches. Finally, the United States should mandate limits on the number of offspring produced by any one donor’s gametic contributions.

Ultimately, the next steps must focus on regulation to protect the best interests of the future and existing donor-conceived offspring. The needs of existing donor-conceived offspring, their family members, and donors must also be respected by, for example, supporting ongoing efforts to facilitate mutual-consent contact.

Taking those next steps will require the involvement, participation, and cooperation of multiple stakeholders both within and outside of the donor world, in recognition that donor-conceived families and their communities are relational entities.

II. Knowing about Donor Conception

A national databank would help offspring who choose to learn the identity of their donors, but there is a second, interrelated part to the right to know: (p.145) the right to know that one has been conceived through donor gametes in the first place.24 The very real possibility, even today, exists that the offspring may not know they had been donor conceived. Parents have the right not to tell their children about their origins, so if laws develop that will allow children to learn of their origins despite their parents’ decision not to disclose, then this affects parents’ constitutionally protected interest (at least when the children are under the age of eighteen). In light of parental autonomy and the corresponding assumption that not all parents will tell their children, then how might law support their interests in learning about and/or connecting with their biological community?

As discussed earlier, one big step—that does not involve conflicting rights and interests—concerns changing the culture inside and outside of fertility clinics to promote openness. A critical issue involves ensuring that offspring know they are donor conceived. Given parental autonomy, some offspring might never learn they were donor conceived, so it is important to think about how the law might support their interests in learning about and/or connecting with their biological community. Even countries that allow offspring access to identifying information neither require parents to tell their children of their donor conceptions nor mandate any other way of providing notice;25 if children are not told, then it is only through inadvertent discoveries, such as via otherwise hidden documents or genetic tests that are typically undertaken for a different reason. While I don’t recommend requiring that parents inform their children, there are other methods that allow individuals to find out if they are donor conceived. For example, they could be officially notified upon the age of majority so they could then pursue information or waive their interest in obtaining it (think of Hagrid’s telling Harry Potter that he is a wizard!). Of course, mandating disclosure or somehow requiring that parents tell their children of their donor-conceived status is highly problematic; not only is it difficult to enforce, but it is highly intrusive of intrafamilial relationships. Even in the world of adoption, there is no mandate that parents tell their children. Instead, adoption professionals provide strong encouragement to parents to do so. The adoption narrative historically emphasized the “chosen child” to help children cope with the sometimes negative perception that adoption was an inadequate substitute for a “real” (biologically linked) family. While the “chosen child” narrative is problematic—a child might wonder whether she could be returned, the story denies any role to the biological parents—it has served to reassure adoptive parents that it is safe to tell their children about their origins. In the donor-conceived world (as discussed earlier), there are numerous potential narratives to help parents explain their children’s creation.

(p.146) There are, however, other possibilities for ensuring that children know that their biological and legal parents are different people without genetic testing. One option is for birth certificates of children conceived with donor gametes to be stamped with “by donation” next to the mother and/or father’s name.26 This ensures that the legal parent is identified on the official birth record, but it also provides a clear indication that the child was conceived through the use of donor gametes, facilitating offspring’s knowledge and access to this information. On the other hand, this option has several drawbacks; first, not only does it place pressure on parents to inform their children of their biological origins but it also makes this information part of an easily available public record. Or, a second possibility is that babies could receive two birth certificates, one that becomes part of the public record and does not include any notation regarding the child’s donor-conceived status, and a second one, which would only be available once the child turns eighteen and which would include identifying information about the donor.27 The second certificate would be available on the basis of specific state criteria. Adopted individuals are issued two birth certificates, so there is precedent for this concept.

A comparable system was proposed in Britain, which considered legislation that would require special notations on birth certificates for the donor-conceived.28 In late 2007, some members of the British Parliament suggested that birth certificates indicate the donor status of a child with a special stamp or by including the words “from donor,” although this never became law.29 Children born after 1990 can already petition the British Human Fertilisation and Embryology Authority (HFEA) to disclose whether they are donor conceived.30 The state of Victoria, in Australia, has launched a “Time to Tell” campaign, encouraging parents to tell their children of their origins in an effort to ensure honesty as well as to prevent consanguineous unions, and the state itself is taking other actions to help individuals who are donor conceived learn their status.31

A combination of media campaigns with the ability of the donor conceived to determine their status provides a system that accounts for family privacy while also changing cultural norms to dissolve the “unnatural” status of the donor conceived. To be sure, some offspring will never know their status, but this system provides a voluntary option that allows people to determine whether they are donor conceived and that encourages openness, disclosure, and acceptance. Parents might, of course, object that the government should not provide this form of private information to their children without their consent, an issue that echoes the basic problem of the potential conflicts between parents’ and children’s interests in this area. (p.147) Ultimately, however, for the mental and physical health of donor-conceived people, to prevent accidental incest, and to encourage a more open approach to all of these issues, offspring’s interests should control here.

Changing current law will be difficult. A variety of interests—clinics, some recipients, some children, and many past, present, and future donors—are opposed to at least some aspects of a mandatory donor gamete databank. The culture of gamete use has come to value secrecy or, at least, the choice of identity release. In the analogous context of open records for adoption, advocates have laboriously proceeded state by state, using lawsuits, lobbying, and referenda in an ongoing effort to change the existing closed-records situation. On the other hand, as technology enables the donor world to obtain more information through genetic tests and Internet registries, existing practices are clearly being challenged.

III. Intent to Create Connections

Two different sets of issues intersect when it comes to moving forward with connection: relationships between donors and offspring, and relationships among donor-conceived families. In both contexts, however, intent is critical in opening up the possibilities for connection. The choice of whether to contact and meet other members of the donor network provides the basis for establishing any bonds.

1. Donors

First, given the uncertainty and confusion in existing parentage laws, states need to clarify the relationship between donors and the families they help create. The legal status of parenthood should be definitively separated from the certainty of biology, even while acknowledging that the right to know the truth of biological parenthood belongs to the child. The lack of legal clarity in the donor world is frightening: donors might fear child support obligations, recipient parents might fear that donors will seek some form of child custody or visitation, and people who have used the same donor might fear the imposition of responsibilities toward one another. Accordingly, in the absence of an agreement otherwise, donors should have no rights and no obligations to donor-conceived offspring. The release of identifying information requires legal clarity on the relationship between donors and the families they help create. In the absence of a written agreement, a donor is not a parent.

For donors to feel comfortable in moving forward with connections, they must be reassured that they will have no legal obligations to their offspring. (p.148) Otherwise, contact between donors and offspring becomes highly problematic, raising potential issues of financial liability, as well as emotional complexities. The default rules would ensure that a donor is not a parent, but would respect donor intent to opt in through a written agreement.

2. Relationships among Families

Second, and similarly, in the absence of an agreement, donor-conceived families should have no rights and obligations to one another. Like donors, however, members of the donor world should be able to opt in to connections. Donor families could sign up to contact others with the same donor, or they could sign up for other recognition of their connections.

As behavioral economists know, people’s choices are structured and influenced by the background architecture, and people are more likely to choose the default rules than opt into different ones.32 If the choice is between signing up for organ donation or opting out of organ donation, then people are more likely to go with the option that does not require further action, regardless of how important they consider the disposition of their bodies.33 An opt-in choice to join donor kin networks ensures that people intentionally form these relationships when they are interested in doing so.

Similarly, the default rules would ensure that a donor is not a parent, but would allow for opting in through a written agreement. Similarly, families who have used the same donor would not have any responsibilities to one another, in the absence of an agreement to the contrary. Donor families could sign up to contact others with the same donor, or they could sign up for other recognition of their connections.

Indeed, once connections have been made, the newly formed donor-conceived communities may want more formal respect of their relationship. This does not mean according parental status or providing all of the affirmative legal protections accorded to families under American law. This might mean, for example, that donor-conceived families could opt into a quasi-familial status. Their biological connections could give rise to some limited rights that depend on context and on choice. As family law increasingly moves toward privatization, toward customizing the meaning of family through mechanisms ranging from open adoption agreements to premarital contracts,34 donor-conceived family communities might be able to choose a weak form of legal recognition.

While my goal is to suggest a paradigm change rather than a specific laundry list of policy prescriptions, this new status could provide various privileges and obligations. Connected families might, for example, be eligible to (p.149) take family and medical leave for one another,35 to inherit, to act as a surrogate decision maker in cases of illness, or to serve as a legal guardian in cases where the parents are incapacitated or have died.36 It might also involve some form of statutory recognition for sibling associational rights, a step that would have a much broader impact on child welfare.37 To provide administrative ease, the default rule would remain that these rights are unavailable in the absence of explicit agreements otherwise. Under the existing system, donor-conceived families can already designate other community members as agents for health care and financial decision making. New laws, could, however, expand the rights available even in the absence of these specific designations. One option might be allowing donor-conceived family communities to enter into a status comparable to designated beneficiaries under some state laws. For example, Colorado provides for a “designated beneficiary” agreement.38 The Colorado legislation is limited to same-sex couples, as well as other couples legally prohibited from marrying one another, but, once registered, the couples are eligible for such benefits as health insurance, inheritance rights, and retirement benefits. It is notable for the ease with which couples can enter and exit the legal status, and the freedom parties have to define the scope of the relationship and rights conferred to their partners; partners are free to choose which rights and protections they want to extend to one another, and there is no requirement of reciprocity.

The purpose is not to create a new legal status that is identical or substantially similar to that of domestic partners or spouses, or even all of the rights and privileges accorded to family members.39 The state and federal governments should not accord legal recognition in a way that is even remotely comparable to the government’s recognition of the family, such as the automatic conferral of a series of rights, duties, and obligations. Instead, the goal is to allow members of donor-conceived family communities to opt in to these rights and duties through voluntary designation of a specified legal status.

Moreover, advocacy to expand benefits might cause the underlying laws to change. For example, the federal FMLA is limited in scope and application; its grudging support for families reflects a compromise in which employers had a significant voice. It only covers employers with fifty or more workers, and employees only become eligible after one year of work. They are then entitled to take up to twelve weeks of unpaid leave from work for medical reasons related to a spouse, child, or parent. It does not allow siblings to take leave (so would not, on its own current terms, apply to half-siblings).

To date, efforts to expand it by, for example, allowing paid leave have been unsuccessful. Nonetheless, advocates within the donor world might join (p.150) with others to encourage expanded coverage to include care for siblings and half-siblings (donor-conceived families might be required to opt into this coverage).

The system outlined above preserves choice but provides legal certainty. Consider, instead, a system of general application that does not allow any exceptions. Thus, even if a donor and recipient tried to set the terms of their own agreement—for example, guaranteeing limited visitation rights—they could not do so. The state would simply mandate the role of a sperm donor, with no possible deviation. This alternative, however, is problematic: with its fixed rules, it prevents people from working out their own arrangements for connection, and it renders intent irrelevant.

Given the problems with other approaches, intent—imperfect as it is—should become the deciding factor. Signing an agreement indicates consent and status. The solution to the current uncertainty of parentage laws, and to the lack of any laws facilitating connection, requires that states recognize written agreements between donors and recipients and other families.

Notes:

(1.) At a conference in Chicago, Dr. Charles Sims circulated a proposal for a national voluntary registry. See also DSR, Draft Proposal for a National Donor Gamete Databank (unpublished, on file with author, 2008) (coauthored by Christina Ayiotis, Naomi Cahn & Wendy Kramer) (counterproposal).

(2.) Nanette R. Elster & Andrea Braverman, The Future Is Now: A Voluntary Gamete Donor Registry Is Feasible, 12 DePaul J. Health Care L. 195 (2009).

(3.) Stephanie Nano, Few Fertility Clinics Follow Embryo Guidelines, SFGATE.COM, Feb. 21, 2009, http://www.sfchronicle.us/cgi-bin/article.cgi?f=/c/a/2009/02/21/MN2A161S2S.DTL.

(4.) Wendy Kramer, Donor Sibling Registry, http://www.donorsiblingregistry.com/chicago-talk.pdf at 6.

(5.) 42 U.S.C. §263a-1 (2008); see 70 Fed. Reg. 5187 (2005).

(6.) See Centers for Disease Control and Prevention, Assisted Reproductive Technology Success Rates: National Summary Report: 2009 National Summary (2011), http://apps.nccd.cdc.gov/art/Apps/NationalSummaryReport.aspx.

(7.) 21 Fed. CFR 1271 et seq. (2008).

(8.) See, e. g., Jennifer A. Baines, Note: Gamete Donors and Mistaken Identities: The Importance of Genetic Awareness and Proposals Favoring Donor Identity Disclosure for Children Born from Gamete Donations in the United States, 45 Fam. Ct. Rev. 116, 126 (2007).

(10.) This is discussed later in this chapter.

(11.) Bonnie Rochman, Where Do (Some) Babies Come From? In Washington, a New Law Bans Anonymous Sperm and Egg Donors, Time, July 22, 2011, http://healthland.time.com/2011/07/22/where-do-some-babies-come-from-in-wash-ington-a-new-law-bans-anonymous-sperm-and-egg-donors/#ixzz1U3bIw8sH.

(12.) Sara Cotton et al., Model Assisted Reproductive Technology Act, 9 J. Gender Race & Just. 55, 79-80 (2005).

(13.) Pino D’Orazio, Half of the Family Tree: A Call for Access to a Full Genetic History for Children Born by Artificial Insemination, 2 J. Health & Biomedical Law 249, 267 (2006).

(14.) Human Fertilisation and Embryology Authority, HFEA Code of Practice (2011), http://cop.hfea.gov.uk/cop/COPContent.aspx?M=0&S=71&SM=83&P=58#content.

(15.) See Naomi Cahn, Test Tube Families: Why the Fertility Markets Need Legal Regulation, chapter 12 (2009).

(16.) A second objection relates to the privacy interests of all involved, an issue discussed later, in chapter 10.

(p.218) (17.) Surrogacy contracts, for example, have been struck down as contrary to public policy. E.g., Baby M, 537 A.2d 1227, 1234 (N.J. 1988) (invalidating surrogacy agreement); Elizabeth Scott, Surrogacy and the Politics of Commodification, 72 Law & Contemp. Probs. 109 (2009). Similarly, where agreements violate legal rights, they are struck down; perhaps the best known example involves racially restrictive covenants. Shelley v. Kraemer, 334 U.S. 1 (1948); see Mark D. Rosen, Was Shelley v. Kraemer Incorrectly Decided? Some New Answers, 95 Cal. L. Rev. 451 (2007); Russell Korobkin, Bounded Rationality, Standard Form Contracts, and Unconscionability, 70 U. Ch. L. Rev. 1203, 1229-30 (2003).

(18.) See E. Wayne Carp, Does Opening Adoption Records Have an Adverse Social Impact? Some Lessons from the U.S., Great Britain, and Australia, 1953–2007, 10 Adoption Q. 29 (2007); Elizabeth J. Samuels, The Idea of Adoption: An Inquiry into the History of Adult Adoptee Access to Birth Records, 53 Rutgers L. Rev. 367, 380 (2001); Jennifer Butch, Note: Finding Family: Why New Jersey Should Allow Adult Adoptees Access to Their Original Birth Certificates, 34 Seton Hall Legis. J. 251, 257-59 (2010).

(19.) See Johnson, 80 Cal. App. 4th at 1057; Uniform Parentage Act §§700 et seq. (2002); Naomi Cahn & Jana Singer, Adoption, Identity, and the Constitution: The Case for Opening Closed Records, 2 U. Pa. J. Const. L. 150, 162 (1999).

(20.) See Eric Blyth & Marilyn Cranshaw, Comment: Countdown Begins for Ending Donor Anonymity in British Columbia: Lessons for Us All? Bionews, June 6, 2011, http://www.bionews.org.uk/page_96105.asp.

(21.) UK DonorLink, Donor Conception, Find the Missing Piece (2011), http://www.ukdonor-link.org.uk/information.asp.

(22.) Sonia Allen, Submission to Senate Committee Inquiry into Donor Conception, Access to Information by Donor Conceived Individuals about Their Donors 21-22 (2010), http://www.parliament.vic.gov.au/images/stories/committees/lawrefrom/donor-conceived/DCP05-Sonia_Allan.pdf.

(23.) This has been done by some states for adoptees, allowing the biological parents and the adoptee to indicate their interest in contacting one another. See Cahn & Singer, supra note 19, at 162-63. Approximately thirty states have established these registries. Children’s Bureau, U.S. Dept. of Health & Human Serv., Child Welfare Information Gateway, Access to Adoption Records: Summary of State Laws (2009), http://www.childwelfare.gov/systemwide/laws_policies/statutes/infoaccessapall.pdf (last visited Nov. 26, 2011). Although Senator Carl Levin repeatedly introduced proposals for a national registry (and I testified in favor of such a registry), the legislation has never been enacted. See Cahn & Singer, supra note 19, at 163 n. 59.

(24.) Lucy Frith, Beneath the Rhetoric: The Role of Rights in the Practice of Non-Anonymous Gamete Donation, 15 Bioethics 473,476 (2001).

(25.) Vardit Ravitsky, A Child’s Right, a Family’s Secret, Globe and Mail, May 26, 2011, http://www.theglobeandmail.com/news/opinions/opinion/a-childs-right-a-familys-secret/article2034905.

(26.) See id. A report from the Ethics Committee of the American Society for Reproductive Medicine on the topic of disclosure observed,

Clinicians, mental health professionals, academics, and children themselves have in recent years called for more openness in donor conception in order to protect the interests of offspring. Because of persons’ fundamental interest in knowing their genetic heritage and the importance of their ability to make (p.219) informed health care decisions in the future, the Ethics Committee supports disclosure about the fact of donation to children. It also supports the gathering and storage of medical and genetic information that can be provided to offspring if they ask. It recognizes, however, that disclosure is a personal matter to be decided by the participants….

Ethics Committee of the ASRM, Informing Offspring of Their Conception by Gamete Donation, 81 Fertility & Sterility 527, 530 (2004).

(27.) See Alison Motluk, Okay, So Who’s Really Your Daddy? Toronto Star, Feb. 16, 2008, at D6.

(28.) See David Derbyshire, Children of Egg Donors “Should Have Birth Certificates Stamped, Daily Mail, Dec. 11, 2007, §1, at 4; Amy Iggulden & Sophie Goodchild, Symbol to Identify Donor Babies on Birth Certificates, Evening Standard, Dec. 10, 2007, at A10.

(29.) Caroline Jones, The Changing Face of Families: A Controversial New Proposal Would Mean a Special Stamp on the Birth Certificates of Babies from Donor Eggs or Sperm; How Will This—and Other New Laws—Affect Families? The Mirror (London), Jan. 10, 2008, at 40.

(30.) But see IFFS Surveillance ‘07, Anonymity, 87 Fertility & Sterility S33, S34 (2007) (tbl. 9.2, Specific Modifications to Anonymity,” highlighting variations in national programs for release of gamete donor information).

(31.) See Evonne Barry, Donor Secrecy “Could Lead to Incest,” Aust. Donor Conception Forum, Aug. 13, 2008, http://australiandonorconceptionforum.org/index.php?topic=165.0; Sonia Allan, Submission to the Senate Legal and Constitutional Affairs Committee Inquiry into Donor Conception, Access to Genetic Information and Donor Identification 23 (2010), http://www.parliament.vic.gov.au/images/stories/committees/lawrefrom/donor-conceived/DCP05-Sonia_Allan.pdf. Professor Allan notes a variety of different ways of marking a child’s donor-conceived status, including (1) annotating the birth certificate of a donor-conceived person with his or her donor-conceived status; (2) providing a separate certificate to a donor-conceived child to let the individual know that there is more information about the child’s birth status; (3) issuing dual birth certificates; or (4) placing a special code on the birth certificate. Id.

(32.) See, e.g., Richard Thaler & Cass Sunstein, Nudge (2008); Dan Ariely, 3 Main Lessons of Psychology, http://danariely.com/2008/05/05/3-main-lessons-of-psychology (last visited Aug. 3, 2011).

(33.) See Ariely, supra note 32.

(34.) See Dan Markel, Jennifer M. Collins & Ethan J. Leib, Privilege or Punish? Criminal Justice and the Challenge of Family Ties (2009); Jana Singer, The Privatization of Family Law, 1992 Wis. L. Rev. 1443 (1992).

(35.) See, e. g., Melissa Murray, The Networked Family: Reframing the Legal Understanding of Caregiving and Caregivers, 94 Va. L. Rev. 385, 451-52 (2008) (discussing costs and benefits of such a proposal). Ethan Leib suggests a “’Friends and Medical Leave Act.’” See Ethan J. Leib, Friendship & the Law, 54 UCLA L. Rev. 631, 682 (2007); see also Ethan J. Leib, Friend v. Friend: The Transformation of Friendship—and What the Law Has to Do with It 99 (2011) (further exploration).

(36.) For issues involving surrogate decision making and guardianship, see Jerry Borison, Naomi Cahn, Susan Gary & Paula Monopoli, Contemporary Trusts and Estates Law, chapter 13 (2011).

(p.220) (37.) See Angela Ferraris, Sibling Visitation as a Fundamental Right in Herbst v. Swan, 39 New Eng. L. Rev. 715, 744-47 (2005) (sibling association rights might affect child custody and visitation as well as the child welfare system).

(38.) Colo. Rev. Stat. § 15-22-105 (2009); see David D. Meyer, Fragmentation and Consolidation in the Law of Marriage and Same-Sex Relationships, 58 Am. J. Comp. L. 115 (2010).

(39.) For a nice accounting of how the state recognizes the rights accorded to family partners, see Appling v. Doyle (Wi. Cir. Ct. 2011), http://data.lambdalegal.org/in-court/downloads/appling_wi_20110620_decision-and-order.pdf.