Friday, January 27, 2012
Glenn Cohen on Sperm Donor Anonymity
I. Glenn Cohen (Harvard Law School) has posted Rethinking Sperm-Donor Anonymity: Of Changed Selves, Non-Identity, and One-Night Stands on SSRN. Here is the abstract:
In the United States, a movement urging legally prohibiting sperm-donor anonymity is rapidly gaining steam. In her forthcoming article in this journal, The New Kinship, and in her wonderful book, Test Tube Families, Naomi Cahn is among this movement’s most passionate and thoughtful supporters. She argues for mandatory sperm-donor registries of the type in place in Sweden, Austria, Germany, Switzerland, the Australian states of Victoria and Western Australia, the Netherlands, Norway, and, most recently, the United Kingdom and New Zealand. The UK system is typical in requiring new sperm (and egg) donors to put identifying information into a registry and providing that a donor-conceived child “is entitled to request and receive their donor’s name and last known address, once they reach the age of 18.”
In this Article, I explain why the arguments for these registries fail, using Cahn’s Article as my jumping off point.
I demonstrate four problems with the arguments she offers for eliminating anonymous sperm donation: (1) Her argument for harm to sperm donor and recipient parents fails in light of the availability of open-identity programs for those who want them, such that she imposes a one-size-fits-all solution where it would be better to let sperm donor and recipients parents choose for themselves. (2) Her argument for harm to children that result from anonymous sperm donation fails for reasons relating to the Non-Identity Problem. This portion of the Article summarizes work I have done elsewhere, most in-depth in Regulating Reproduction: The Problem With Best Interests, 96 Minn. L. Rev. _ (forthcoming, 2011), http://ssrn.com/abstract=1955292, and Beyond Best Interests, 96 Minn. L. Rev. _ (forthcoming, 2012 and up on SSRN soon). (3) She has sub silentio privileged analogies to adoption over analogies to coital reproduction. When the latter analogy is considered, her argument is weakened. I show this through a Swiftian Modest Proposal of a Misattributed-Paternity and One-Night-Stand Registry paralleling the one she defends for sperm donation. (4) The argument may not go far enough even on its own terms in endorsing only a “passive” registry in which children have to reach out to determine if they were donor conceived, rather than an “active” registry that would reach out to them. If we recoil from such active registries, that is a reason to re-examine the reasons in favor of the less effective passive ones.
For the reasons discussed, despite my admiration for this paper and all of Cahn’s work, I am not persuaded by the argument for adopting a mandatory sperm-donor identification registry of the kind in place elsewhere in the world. Indeed, I think these registries should be eliminated, not replicated. At a moment in which the idea of these registries is rapidly gaining popularity and attention in the United States, I hope my dissenting voice will be heeded.