Evelina and I struggle with the issues surround donor anonymity and we don't pretend to have a position statement ready. But we do believe the discussion is an important one and it needs to be opened.
An op-ed by Margaret Somerville, director of the Centre for Medicine, Ethics
and Law at McGill University; author of ŒThe Ethical Imagination: Journeys
of the Human Spirit¹
December 12, 2008. The Ottawa Citizen
http://www.ottawacitizen.com/columnists/thread+life+passage/1064907/story.html
The Olivia Pratten case in British Columbia involves a young woman conceived
through anonymous sperm donation, who has gone to court claiming that people
like her have a right to know their genetic origins. [See:
http://www.arvayfinlay.com/news/news-oct28-2008.html ]
But this claim is just one of a much broader range of such issues. Some of
them are raised in old contexts -- adoption -- others in new ones --
reproductive and genetic technologies, and same-sex marriage. These contexts
are connected in that they all unlink child-parent biological bonds. Each
raises one or more of three important issues: children's right to know the
identity of their biological parents; children's right to both a mother and
a father, preferably their own biological parents; and children's right to
come into being with genetic origins that have not been tampered with.
I believe we need to turn to human rights to formulate the protections
children need and that we, as a society, owe them in these respects.
Articulating human rights is an ongoing process. As used to be true for
women, children's human rights have been largely ignored. They must move
from being the "voiceless citizens" to becoming the new kids on the human
rights block, especially with respect to their human rights regarding their
biological origins and biological families.
It is one matter, ethically, for children not to know their genetic identity
as a result of unintended circumstances. It is quite another to deliberately
destroy children's links to their biological parents, and for society to be
complicit in this destruction.
Adopted children's right to know who their biological parents are whenever
possible is now widely recognized, and legislation establishing that right
has become the norm. The same right should be accorded to children born
through gamete (sperm or ovum) donation.
People born through anonymous gamete donation describe a profound sense of
loss of genetic identity and connection from not knowing one or both
biological parents and their wider biological families. They describe
themselves as "genetic orphans" and ask, "How could anyone -- especially
society -- think they had the right to do this to me?"
The ethical doctrine of "anticipated consent" requires that when a person
seriously affected by a decision cannot give consent, we must ask whether we
can reasonably anticipate they would consent if able to do so. If not, it's
unethical to proceed. Many anonymous-donor-conceived children strongly
assert they would not have consented.
Ethics, human rights, and international law all require that children have
access to information regarding their biological parents. And it is not just
these children who have this right, but their future descendants as well.
Consequently, if society is going to support gamete donation, respect for
children's rights requires that the law should prohibit anonymous donation,
establish a donor registry, and recognize children's rights to know the
identity of their biological parents.
Canada has eliminated this right of children by legalizing same-sex
marriage. Because marriage carries the right to found a family, giving that
right to same-sex married couples eliminates the rights of all children --
not just those brought into same-sex marriages -- to both a mother and a
father and to know and be reared within their own biological family. These
same rights of children are challenged by society's involvement in
intentionally creating single-parent households, for example, by funding
single women's access to artificial insemination.
It's often argued that many children grow up in a single-parent home without
a parent of the opposite sex (most commonly a father), as a result of
divorce, death of a parent, or their parent (most commonly their mother)
having no partner, so intentional parenthood by single people or same-sex
couples should not be a concern. Ethically, however, there is a huge
difference between, on the one hand, that situation arising as a collateral
damage from other events and, on the other hand, its being deliberately
planned, supported with societal resources, and, in the case of same-sex
marriage, institutionalized.
The right to found a family that comes with same-sex marriage also raises
issues of children's rights in relation to new reproductive technologies
(NRTs). In the Halpern case [See
http://www.sgmlaw.com/en/about/Halpernv.CanadaAttorneyGeneral.cfm], the
Court of Appeal of Ontario expressly recognized that same-sex married
couples could use these technologies to exercise this right. That means
recognition of children's human rights with respect to their biological
origins is more urgent.
Current "advances" in NRTs make it necessary to formulate new rights for
children that would have been unimaginable until very recently. I propose
that a child's right to be conceived with a natural biological heritage is
the most fundamental of all human rights and must be recognized in law.
Children have a right to be conceived from untampered-with biological
origins, that is, a right to be conceived from a natural sperm from one
identified, living, adult man and a natural ovum from one identified,
living, adult woman. Society should not be complicit in -- that is, should
not approve or fund -- any procedure for the creation of a child, unless the
procedure is consistent with the child's right to a natural biological
heritage.
Adding the words "man" and "woman" in defining the right to a natural
biological heritage, rather than simply referring to sperm and ovum, is not
superfluous. It is theoretically possible to create an embryo with the
genetic heritage of two women or two men, including by making a sperm or
ovum from one of the adult's stem cells and using a natural gamete from the
other person. The word "natural" excludes an opposite-sex couple using this
technology to make an artificial sperm from an infertile man or artificial
ovum from an infertile woman. It also excludes transmitting human life other
than by sexual reproduction, for instance, by cloning (asexual replication);
genetic enhancement of gametes or embryos ("designer children"); and
alteration of the human germ cell line, the genes passed down from
generation to generation. The requirement that the gametes come from adults
preempts the use of gametes from aborted fetuses; it prevents children being
born whose biological parent was never born. And the requirement that the
donors be living excludes the use of gametes for postmortem conception.
Children should have a right to at least the chance, when being conceived,
of meeting their biological parents.
All these rights of children are of the same basic ethical nature -- they
evoke obligations on each of us as individuals and all of us as a society to
first do no harm. In short, we have obligations to ensure respect for these
rights of children.
Knowing who our close biological relatives are and relating to them is
central to how we form our human identity, relate to others and the world,
and find meaning in life. Children -- and their descendants -- who don't
know their genetic origins cannot sense themselves as embedded in a web of
people, past, present and future, through whom they can trace the thread of
life's passage down the generations to them and from them. We are learning
now that eliminating that experience is harmful to children, biological
parents, families, and society. We can only imagine how much more damage
might be done to a child born not from the union of a man's natural sperm
and a woman's natural ovum, but from "gametes" constructed through
biotechnology.
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