restricted access Prohibiting Anonymous Sperm Donation and the Child Welfare Error
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Prohibiting Anonymous Sperm Donation and the Child Welfare Error

Should anonymous sperm “donation”—a misnomer, since sperm is usually purchased—be permitted? A number of countries, including Sweden, Austria, Germany, Switzerland, the Netherlands, Norway, New Zealand, and several Australian states, have answered no.1 The United Kingdom recently joined this list, instituting a system whereby new sperm (and egg) donors must put information into a registry, and 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.”2 The arguments offered by the legislators in these jurisdictions in favor of these measures, along with the arguments offered by scholarly proponents such as Naomi Cahn, focus on one major consideration: child welfare.3 The claim is that donor-conceived children are harmed when they are deprived of access to the identity of one of their genetic parents. Interestingly, opponents of these measures have battled on the same playing field, disputing the empirical evidence underlying the claim of harm to children.

In relying on this foundation, I will argue, both sides are making an error. These child welfare arguments are part of a larger error in using what I call “best interests of the resulting child” reasoning as justifications to support governmental interventions that aim to alter when, whether, or with whom individuals reproduce.4 This is a tempting but erroneous transposition of “best interests of existing child” reasoning from family law. It allows the construction of a false overlapping consensus around the genuinely uncontroversial imperative “do not harm children,” obfuscating the controversial reasoning that must actually underlie these interventions.

The reasoning is mistaken for reasons that are related to Derek Parfit’s nonidentity problem and are also implicitly recognized by the U.S. courts that have rejected wrongful life tort liability.5 Whenever a proposed intervention will determine whether a particular child will come into existence, child welfare arguments premised on that child’s welfare are problematic. So long as a child will not have a “life not worth living,” the child cannot be said to be harmed because the alternative was simply not existing. (A different child was substituted for it because not using the proposed intervention meant not creating that child). Thus, any intervention that will alter whether, with whom, or even when individuals reproduce cannot be justified by concern for protecting the resulting child’s welfare unless the child would have a life not worth living—a condition that may not rule out any lives at all. In any event, there is no plausible argument that children born of anonymous sperm donation have lives not worth living.

Prohibitions on sperm donor anonymity tend to have implications for whether and with whom individuals reproduce. Such regulation may cause some would-be donors not to donate. It also may change whether recipients reproduce, since some intending parents will be unwilling to engage in artificial insemination if donor identification is mandated. Further, regimes that prohibit anonymity usually, other things being equal, reduce the number of sperm donors; that has been the experience in Sweden, the Australian province of Victoria, England, New Zealand, and the Netherlands.6 If such regulation produced a true gamete shortage, then we would end up with a de facto restriction on whether some women seeking donors reproduce.

To deal with such shortages, many countries try to recruit new sperm donors, which eases the limits on whether women reproduce but affects with whom they reproduce. In Sweden and in the Australian province of Victoria, “recruitment efforts have focused increasingly on the older, more altruistically motivated donor as a way of rebounding from the initial dampening effects” of the prohibition on donor anonymity; one clinic in the Australian province of New South Wales even flew Canadian students to Australia for complimentary “vacations” that required sperm donations every second day.7 Furthermore, even if the same donors provide sperm to the same recipients under the new and old regimes, the different regimes may alter when they donate and thus when reproduction takes place.

If a shift from a regime permitting to one prohibiting anonymous sperm donation always altered when, whether, or...