Drawings of sperm at Sexual Health Information Art Gallery.
Should a donor-conceived child have the right to know the identity of his or her sperm or egg donor? The South African Law Reform Commission is investigating this question and holding workshops around the country. As such, it is opportune to stimulate public debate on this issue.
Currently, our law provides for sperm and egg donor anonymity. A donor-conceived child can access all the available medical information about a donor, but not the donor’s name or contact details.
From a practical perspective, the right to access a donor’s medical information depends on the child actually knowing that he or she is donor conceived. The law does not prescribe that a parent should ever make such disclosure to a child.
Some argue that it is in the best interest of a donor-conceived child to know the identity of his or her donor, and that the current donor anonymity should be replaced by compulsory access to donor identity. This argument often relies on studies conducted on adopted children, or on anecdotes of donor-conceived children who want to know the names of their donors.
The psychology of being donor-conceived is different from being adopted. As such, studies conducted on adopted children cannot be applied to donor-conceived children.
Large-scale empirical studies on donor-conceived children are still limited in number, but the results suggest that knowing the identity of one’s donor has no effect on children’s psychological wellbeing. Accordingly, the existing psychological evidence contradicts the claim that knowing the identity of one’s sperm or egg donor is in the best interests of the child.
In the recent case of AB vs Minister of Social Development, this very issue was debated in the Constitutional Court. The majority of the Bench decided that knowing the identity of one’s sperm or egg donor is important for a child’s self-identity, and thus in the best interests of a child. The minority of the Bench disagreed with this conclusion.
It is important to note that the majority did not pay any heed to the psychological evidence presented to the court. This included expert opinions by world-leading psychologists, who provided relevant insights on how a child forms an identity. One of the psychologists observed that there are many factors in a child’s environment that affect the formation of an identity and some factors may complicate this more than others.
But, the psychologist said, experiencing a more complicated process of forming an identity does not necessarily mean a child’s psychological well-being is negatively affected.
Everyday examples from contemporary South African society confirm these psychological observations. Think, for instance, of children of mixed-race couples and same-sex couples. Our law allows these couples to have children, despite the fact that the identity formation of these children are likely to be more “complicated”. “Am I a Zulu like my mother, or an Afrikaner like my father?” “How can I be both?” “Why do I have two mothers, while other children have one mother and one father?”
These questions undoubtedly complicate the formation of a child’s self-identity, but do they cause a child psychological harm? Is the best interests of the child compromised by mixed-race couples and same-sex couples having children? I believe not. Our legal values have evolved beyond such prejudice.
We accept that a more “complicated” formation of identity is not necessarily a bad thing for a child.
Then why all the fuss about donor-conceived children and knowing the identity of one’s sperm or egg donor?
The ramifications of creating a new right to know the identity of one’s sperm or egg donor go beyond the immediate interests of donor-conceived children. Will sperm or egg donors still be willing to donate? Countries such as the United Kingdom that legislated such a right saw a drastic decrease in sperm and egg donations, and even the closure of fertility clinics. Do we not rather want to maintain and expand access to fertility healthcare services?
The current donor anonymity may be too rigid and could be replaced with a system that offers donors the choice of whether they are willing to disclose their identities or not and, if so, whether they are willing to have contact with the donor-conceived child.
It will then be up to the child’s parents to choose a donor who fits their personal values. Parents who do not want to disclose their child’s donor conception can opt for an anonymous donor. On the other hand, parents who believe it in their child’s best interests can choose a donor who is willing to have contact with the child during the child’s childhood. This is a flexible, consensus-based system that does not force one conception of morality on all parents.
To create a new right to know the identity of one’s sperm or egg donor will simply replace the current rigid system with an equally rigid, one-size-fits-all system.