In the U.S., very few regulations govern fertility technology. Sperm, egg, or embryo donation (which involves IVF) is handled by private banks, and the arrangements are contractual. Most agreements require the consumer to consent to the permanent anonymity of the donor. Of late, however, some facilities are offering, for an additional fee, non-anonymous donations, with the identity of the donor disclosed when the child reaches a certain age. Reproductive Medicine Associations of Connecticut offers both open identity and anonymous egg donors but cautions that regarding anonymous donations, “both parties… must agree not to seek information concerning the other.” [1]
Direct-to-consumer genetic testing coupled with widespread social media networks threatens to end-run these agreements, as determining the identity of a gamete donor can be done on one’s own without assistance from the sperm bank. Indeed, this has been done. In response, one facility, Northwest Cryobank, threatened legal action against a consumer who tried this approach, rescinding the right to use more sperm to procreate siblings, even though the genetic material had already been paid for.
“Although the legality of the Cryobank’s actions is murky, the case indicates that anonymity is serious business.”
- Professors Sonia Suter and Naomi Cahn [2]
A changing trend
Many European countries and the six Australian states now require disclosure of donor identity when the child reaches a certain age. In the U.S., Colorado is the sole state requiring disclosure; in May of 2022, the Colorado Legislature passed the “Donor-conceived Persons and Families of Donor-conceived Persons Protection Act.” The Act provides that:
“Upon request of a DCP [Donor Conceived Person] who is 18 years of age or older… release of identifying and medical information [must be made] to the DCP or the DCP's legal parent or guardian.”
Further, the Act requires the gamete-transfer facility to request that a donor update the donor's contact information and medical history at least once every three years. This feature is generally unmatched worldwide.
Disclosure requirements are far from universal. Even where countries require anonymity – other provisions in the relevant legislation starkly differ. These include:
- Eligibility to both donate and to receive (for a woman, gamete reception is until the mid-forties in most countries, but to age 54 in Israel)
- The number of donations permitted.
- The duration of record retention (ten years in the US, Germany, and Israel, and upwards of 50 years in Bosnia and Herzegovina). And
- Allowance of payment for “donation” (allowed in the U.S. and Israel, for example, and strictly forbidden in India). Strictly speaking, where the “donor” is paid, they should more appropriately be called a “supplier,” but we’ll stick with the conventional “donor” here.
These differences invite reproductive tourism. The International Chair in Bioethics, Medical Ethics, and Health Law [3] convened a working group of international experts in Reproductive Law to determine if these differences can be reconciled. Turns out the answer is – no.
It appears that the cultural mores of a country influence its policy. Perhaps what is more astounding is that while the requirement for anonymity is identical in many countries, the rationale differs. And these differing rationales, too, are culturally driven.
The generally prevailing reason for anonymity is the donor’s right to privacy. In some countries, this right might be constitutionally guaranteed, if not a contractually agreed-on expectation. Given that the donor's situation probably alters over time, we can expect the donor might be quite embarrassed by the revelation that he sired another child coming some twenty years later.
Another concern supporting anonymity is the fear that identity- disclosure will scare off prospective donors, reducing supply. This rationale protects both the donor and society. Often, the loudest champions of anonymity are not donors but doctors and sperm bank owners eager to champion their commercial interests, estimated in the billions of dollars. Nevertheless, the failure to disclose at least the donor’s genetic lineage and medical condition (as opposed to social identity) is detrimental to the child.
The anonymity policy is often so outcome-determinative that interpretation of survey results is culturally dependent. Most countries assume that anonymity will reduce supply. However, in Australia, where disclosure is the rule, after anonymity was eliminated – the supply actually increased.
The Best Interests of the Child
The U.N. Convention on the Rights of Child [CRC]of 1989 made the right of the child to know their origin as far as possible mandatory in 1991.
“The Convention is celebrated as one of the most significant steps taken toward improving the lives of children throughout the world.”
- Igor Milinkovic, Professor of Law University of Banja Luka
The Convention establishes that it is in “the best interests of the child” – the universal criteria to evaluate child-affecting policy - to know their biological origins. However, some countries interpret what is in the child's best interests differently. India, for example, which requires anonymity:
According to Dr. Vivek Mady, an Indian obstetrician and a lawyer active in the field, amongst other concerns, India worries that disclosure would result in disturbance to the family unit, which might impact the child. What if the biological parent seeks to establish a relationship with its offspring or wishes to bestow an inheritance on their progeny? The fear is that involvement with the biological parent might disrupt the family unit, instigate rivalries and jealousy between half-siblings, and jeopardize the relationship between the child and the parents who raised them.
Many countries look to adoption policy to determine disclosure policies of biological destiny and antecedents. Other countries distance adoption (and its rules) from gamete donation, distinguishing the latter for many reasons, including that in gamete donation, at least one parent is genetically related. In Bosnia/Herzegovina, mandatory disclosure of adoption is required at age seven, yet anonymity of gamete donors is still the law.
Indeed, a country will go to great lengths to foster their native interests. Israel, for example, is a strongly pronatalist country. [4] Along with protecting the business interests of doctors, hospitals, and sperm banks, the country jealously guards the supply of gametes. Anything that might threaten it is precluded, and that means Israel has a strict anonymity policy for fear that disclosure might threaten supply. (Anonymity does not apply to imported gametes).
Yet, Israel was a signatory to the CRC. So, how could this be?
As explained by Prof. Ruth Zafran:
“Israel is a dualist system and as such a treaty signed by Israel is not legally binding unless the treaty is adopted by the Knesset as a law. The CRC wasn’t adopted as a binding law... it is only a source of interpretive inspiration.” [5]
And what about using technology to end-run the system? In some countries, the mere idea is far-fetched. In the U.S., where the practice of DNA testing and social media groups likely will continue, as in Israel, the law will run after the science and try to play catch-up. Yet again.
[1] Report of the Reproductive Law Working Group: Anonymity in Gamete Donation and the Right to Know One’s Genetic Origins: Practices and Perspectives from Around the World [forthcoming in “ReproLaw Report] published under the auspices of the International Chair in Bioethics, Medical Ethics and Health Law, Professor Amnon Carmi
[2]Id. The Law in the U.S.,
[3] The International Chair in Bioethics, Medical Ethics and Health Law is an independent organization, initially formed in conjunction with UNESCO, which coordinates and stimulates “an International Network of Institutes for Medical Ethics Training, associating higher education institutes in both the developed and developing countries, developing an up-to-date syllabus for medical ethics education which will satisfy the requirements of medical schools in the world.”
[4] Barbara Prainsack of the University of Vienna claims this is a reaction to the holocaust Negotiating Life': The Regulation of Human Cloning and Embryonic Stem Cell Research in Israel
[5] ReproLaw Report, The Law of Israel
