Friday, November 14, 2008

Every One is Sacred

In "Hannah and Her Sisters," Woody Allen's character tells his best friend that, after unsuccessfully attempting to conceive the conventional way, he and his wife "need some sperm." Allen, who has filmed several recent movies in England, was apparently prescient about his neighbors. It appears that England too, needs some sperm. According to this story in Wednesday's NY Times, in 2006, England managed only 307 sperm donors, short of the needed 500.

The problem, it appears, is that since passage of a 2005 law, people born from sperm donors have a right, upon turning 18, to learn the identity of their biological fathers. This has deterred potential donors who no doubt worry about dozens of potential offspring tracking them down years later and each demanding a few quid for a movie. Indeed, they might even worry that the law could change and place some legal responsibility on them for the welfare of the fruit of their loins.

Of course, viewed from the perspective of the offspring, things look different. At the very least, one would want to be apprised of genetically transmittable health problems that the sperm donor encounters after he has made his donation. But presumably that information could be made available to the offspring while maintaining the anonymity of sperm donors, through an intermediary. In a country with a National Health system, sperm donors could be flagged and their health status, but not their identity, could be sent to the mothers of their biological offspring.

Still, a sperm donor's biological child might want more. Most adopted children at some point express curiosity about their biological parents. (In so-called "open" adoptions, that curiosity is satisfied early on.) Upon reaching adulthood, shouldn't the offspring of sperm donors be entitled to try to make contact with their biological fathers if they want to?

One answer to this question might rely on the non-identity problem: As we see, a law granting sperm donors' offspring the right to track down their biological fathers deters their creation in the first place, so it is in the interest of potential offspring of sperm donors not to have a right to learn their biological fathers' identity, as such a right could prevent their very existence!

I am not generally persuaded by invocations of the non-identity problem to defeat legal rights. For example, it is sometimes argued that current societies owe nothing to the descendants of American slaves because, without slavery, current descendants of slaves would not exist. It strikes me that wrongdoers (or those who have benefited from wrongdoing by others) should be estopped from making this sort of argument. But there may be more to the non-identity point in the sperm donation context. (For a somewhat related solution to the non-identity problem in the context of historic injustices, see this paper by Ori Herstein. The GW Law Review Symposium on Intergenerational Justices, about which I blogged about last month and which Neil reprised yesterday, included presentations by Herstein and Sherry Colb that considered the non-identity problem as well.)

Posted by Mike Dorf