The Constitutionality of Extending the Right to Identity Provisions in the Children and Family Relationships Act 2015 to Donor-Conceived Children

• Date: 01 January 2017
• Author: Donna Lyons

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e Constitutionality of Extending the Right to

Identity Provisions in the Children and Family

Relationships Act 2015 to Donor–Conceived

Children

DONNA LYONS*

I can tell you from the bottom of my soul that I have over this lifetime

constantly struggled with father gure issues and identity issues … And when

my mother explained about my donor conception it all fell into place. I have

been in therapy for ve years now, trying to rebuild my identity.1

I don’t think you can put an age on when someone is ready for this

information. I was given my donor’s le when I was maybe 8, and although I

couldn’t contact him because he’s anonymous, that info meant so much to me.

I think there’s a misconception that at a certain age you’re still ‘not ready’ to

handle the details of your own identity. I think that’s absurd and an opinion

only held by those with no personal donor/donor sibling experience.2

Introduction

Donor conception involves the use of donated gametes or embryos to conceive a

child where a natural pregnancy cannot otherwise be achieved.3 A growing body

of evidence indicates that the lack of a genetic connection as a result of donor

* e author would like to thank Professor Neville Cox and Dr Patricia Brazil for helpful comments

on an earlier dra of this article. Special thanks are also due to Mr. Raymond Byrne.

1 Male, 36. Interview with the author (France, 2 September 2015)

2 Female, 20. Interview with the author (United States, 28 May 2015)

3 Donor conception has historically been a treatment for heterosexual couples in which the male

partner is infertile. e use of oocytes and embryos in donor conception are relatively new

procedures, made possible by advances in reproductive technology over the past 30 years. See

generally, Mark Sauer, “Oocyte and Embryo Donation: Reviewing Two Decades of Innovation and

Controversy” (2006) 12(2) Reproductive Biomedicine Online 153. Where a woman is experiencing

infertility or wishes to use donated oocytes for some other reason, in vitro fertilisation (IVF) may

also be required. IVF involves the fertilisation of an oocyte in a laboratory, the embryo(s) then

being implanted into a woman’s womb. According to the World Health Organisation, infertility

is ‘a disease of the reproductive system dened by the failure to achieve a clinical pregnancy aer

12 months or more of regular unprotected sexual intercourse’. World Health Organisation, ‘Sexual

and reproductive health: infertility denitions and terminology’ www.who.int/reproductivehealth/

topics/infertility/denitions/en/ [Accessed 10 March 2017]. Between 10% and 15% of all couples

experience infertility and research into the causes of, and treatments for, this condition are ongoing.

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conception does not in itself have a detrimental impact on child adjustment

and family functioning.4 However, emphasis has been placed on the potential

harm caused by the traditional maintenance of secrecy and anonymity in respect

of the practice. As a result, public attitudes are beginning to change with calls

for increased openness across the public realm and an emerging consensus that

parental disclosure is in the best interests of children.5 e doctrine of anonymity

has thus been called into question and a number of jurisdictions have introduced

legal prohibitions on anonymous donation.6

e donor conception community has been inuential in this regard, with many

donor–conceived people speaking out about the identity crises which accompany

a lack of information about the donor and the odyssean journeys undertaken in

search of biological parents.7 e importance of genetics, or biological relatedness,

in identity formation has thus played a signicant part in the debates surrounding

the prohibiting of anonymity. It is noteworthy in this context that several

jurisdictions prohibiting anonymity have recognised the right of donor–conceived

children under the age of 18 to access genetic information.8 is is primarily due to

the fact that identity construction has been linked to childhood,9 and in particular,

to the adolescent period10 and the notion that children and adolescents may possess

4 See, for example, Susan Golombok and others, “Non-Genetic and Non-Gestational Parenthood:

Consequences for Parent-Child Relationships and the Psychological Well-Being of Mothers,

Fathers and Children at Age 3” (2006) 21 Human Reproduction 1918

5 Tabitha Freeman, “Gamete Donation, Information Sharing and the Best Interests of the Child: An

Overview of the Psychosocial Evidence” (2015) 33(1) Monash Bioethics Review 45, p. 53

6 Jurisdictions prohibiting the practice of donor anonymity currently include: Austria, Finland,

Germany, the Netherlands, Norway, New South Wales, New Zealand, Sweden, Switzerland, the

United Kingdom, Victoria, and Western Australia. See Donna Lyons, “Extending the ‘Right to

Identity’ to Donor-Conceived Children in Ireland: A Jurisdictional Case Study” (2017) 7(1) Irish

Journal of Legal Studies 1

7 See generally, “My Father Was an Anonymous Sperm Donor” e Washington Post 17 December

2006; “Hello, I’m Your Sister. Our Father is Donor 150” New York Times 20 November 2005;

“Day the Daughters of Donor X Finally Met” e Mail on Sunday 21 May 2006; “Who’s the

Daddy?” e Guardian 3 January 2006; “Popular Donor’s Family Tree May Keep on Growing”

Washington Post 1 May 2006; “Searching for eir Genes” Vancouver Sun 22 April 2006

8 Of those 12 jurisdictions prohibiting anonymity, outlined above, only two (Finland and Norway)

provide for access to identifying donor information at the age of 18, with no exceptions being made

for donor–conceived children. Of particular interest are the jurisdictions of Austria (granting

access at age 14), the Netherlands and Western Australia (granting access at age 16), Sweden and

Victoria (granting access at “sucient maturity”) and Germany (granting access at any age).

9 See generally, K. Durkin, Developmental Social Psychology: From Infancy to Old Age (Oxford: Wiley

Blackwell Publishers, 1998); D. Elkind, Children and Adolescents (Oxford: Oxford University

Press, 1974); J. Santrock, Child Development, 13th edn (New York: McGraw-Hill, 2011); J. Piaget,

Judgement and Reasoning in the Child (New Jersey: Littleeld, Adams & Company, 1968); S.

Harter, “Emerging Self-Processes during Childhood and Adolescence” in Mark Leary and June

Tangney (eds), Handbook of Self and Identity, 2nd edn (New York: Guilford Press, 2012); P. Burke

and J. Stets, Identity eory (Oxford: Oxford University Press, 2009)

10 See generally, S. Shirley Feldman and G. Elliott, At the reshold: e Developing Adolescent

(Cambridge, MA: Harvard University Press, 1993); D. Browning, Adolescent Identities: A Collection

of Readings (New York: e Analytic Press, 2008); Alice Schlegel, “Perspectives on Adolescent

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