23 Columbia Journal of Gender and Law 1 (2012)
Obtaining sperm to use in Assisted Reproductive Technology (ART) is relatively simple. Hospitals, clinics, and sperm banks throughout the United States are in the business of selling sperm from literally thousands of men. Once a man is approved to provide sperm, he contracts with the sperm bank to supply sperm for a specified period of time and designates himself as either an anonymous or open-identity sperm provider. When a man chooses to provide his sperm anonymously, both the sperm provider and intended parents agree to complete anonymity – that is, the sperm provider can never know the parents or any offspring, and vice versa. Anonymous sperm providers make up the vast majority of men selling sperm.
Several commentators have argued that the use of anonymously provided sperm causes significant harm to provider-conceived children. Concerns asserted on behalf of provider-conceived children include: that provider-conceived children suffer emotional and psychological harm as a result of not knowing the identity of their genetic fathers; that the use of anonymously provided sperm violates a child’s right to know her genetic parents and will lead to unintended romantic relationships between genetic half-siblings; and that provider-conceived offspring are unable to adequately monitor their health and treat medical conditions because they are denied access to genetic information about their sperm provider. In response, several academics have called for a ban on anonymously provided sperm and a mandate that parents disclose to their children that they were conceived using purchased sperm.
This article takes issue with both of these proposed regulations for two reasons. First, a ban on anonymously provided sperm and a requirement that parents inform their provider-conceived children of the details of their conception raise significant constitutional issues. For such legislation to be constitutional, it would presuppose that the fundamental rights to procreate and to raise one’s child are less robust for persons who conceive via ART than they are for persons who conceive through sexual reproduction. Currently, commentators advocating for a ban on anonymously provided sperm implicitly presume these lesser rights. Second, as a policy matter, such regulations are unnecessarily broad. A more tailored legislative response in the form of a national registry would address the legitimate concerns over the use of anonymously provided sperm without threatening the fundamental rights of ART parents.
Byrn, Mary P. and Ireland, Rebecca, "Anonymously Provided Sperm and the Constitution" (2012). Faculty Scholarship. Paper 232.