Nobody's Child, Everybody's Children:

In Search of Identity: Reconciling the Interests of Gamete Donors and their Offspring in the Disclosure of Identifying Information about the Donor

With the coming into force of the Assisted Human Reproduction Act [AHRA], Canada now prohibits those conceived from donated sperm and eggs from obtaining identifying information about their biological parent(s) without consent. This is in contrast to other Canadian and foreign laws that reflect a trend toward greater openness in gamete donation and the analogous situation of adoption. For example, the Ontario Adoption Information Disclosure Act permits non-consensual disclosure to adoptees of identifying information about their biological parent(s) and even applies where birth parents were assured of their anonymity at the time they gave their child up for adoption. In addition, the British law on which the AHRA is largely based – the Human Fertilisation and Embryology Act - has been amended with regard to its disclosure policy and now permits adults conceived though donor gametes to discover the identities of their biological parent(s).

Given the disparity between the AHRA and other domestic and international legislation, this research examines whether the Canadian approach is justifiable and if so, on what basis. To this end, it explores the interests of those conceived through donor gametes in the disclosure of identifying information, such as facilitating the development of their sense of identity. These interests are then compared to those of gamete donors in the non-disclosure of such information – in particular their privacy interest. In addition, other reasons for the non-disclosure policy, such as a fear that an open system would lead to a significant drop in donation rates, are briefly discussed.

This comparison shows that, although a desire to know one’s biological origins may be based on a social construct of the family, that construct is nevertheless deeply ingrained. Despite general acceptance of same sex marriage, adoption, step parenting, co-parenting, etc., it seems that biology matters and people denied information about their biological heritage suffer because of it. Although claims of a right to know one’s genetic origins do not seem well-supported, the AHRA states that priority should be given to the health and well-being of those conceived through donor gametes. A policy of donor anonymity is inconsistent with this intent and the government should therefore consider changes to the AHRA that would, for example, only allow people to donate gametes if they agree to be identified to any eventual offspring.