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

Date01 January 2017
AuthorDonna Lyons
e Constitutionality of Extending the Right to
Identity Provisions in the Children and Family
Relationships Act 2015 to Donor–Conceived
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
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’
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 GenesVancouver 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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