This guest post is from Logan Easley, Regent Law 2023 graduate:
Eighteen-year-old Zack Daily-Anderson, a donor-conceived child from the Virginia Fairfax Cryobank, discovered he had at least 237 half-siblings through DNA testing websites. Another donor child named Tyler had to undergo heart surgery at age eighteen because he inherited a rare aortic disease from his sperm donor father (“John”). A donor named Jessica died at age thirty-one of a rare cancer that could be passed genetically. After her passing, her mother went to the gamete facility that Jessica donated to so that the recipient families could be notified of this health risk. Unfortunately, the facility stated that the records of who had received Jessica’s eggs had already been destroyed, per state law. As Artificial Reproductive Technologies (ART) grow, many have questioned how the law should evolve to protect the health and well-being of donor children while maintaining donor anonymity. For Colorado, the ability to retain anonymity is no longer feasible, nor worth the risk to the families and children produced through ART.
In 2022, Colorado passed a bill banning anonymous gamete (sperm and egg) donations. This law came just after 9 million dollars was awarded to families who were impregnated with the fertility clinic doctor’s own sperm. With modern DNA testing options, it was concluded that anonymity was something that could no longer be protected with reasonable certainty. Additionally, the Colorado legislature affirmed that knowing one's “donor is important to the health and identity of many donor-conceived persons.” Colorado’s bill will take effect in 2025 which will require gamete clinics and banks to keep a record of all donor’s identity and medical information and update said information every three years. Once a donor child has reached the age of majority (or become emancipated) this information can be released to them. The bill has been met with criticism for restricting the ART business but also supported for settling long-held ART concerns.
The new Colorado bill resolves several issues in the ART industry. For one, donors are typically young and may not demonstrate any symptoms of underlying conditions until later in life, after they have donated. The bill resolves this issue by requiring gamete banks and fertility clinics to put in a good faith effort to acquire health updates from the donor and allow donor children to access that information. Additionally, it gives donors a choice to be immediately identified or has that information withheld till the child comes of age. By default, most banks and clinics in the US automatically grant anonymity without regard to the donor’s or intended family’s wishes. Last, but certainly not least, it requires that banks and clinics limit the number of children produced by one donor to ten families. This includes both in and out-of-state families. This ensures that cases like Zack's are not repeated, and ART families are not at a higher risk of incest. Although the bill addresses major public concerns surrounding ART, many are still hesitant to make the change.
Many donors continue to want the option of remaining anonymous. Gamete banks and fertility clinics are also hesitant to refuse anonymity for fear that it may dissuade individuals from donating. However, several countries, including Australia, Sweden, Austria, and the United Kingdom, have banned anonymous donations, preferring to focus on the best interest of the child. Although it is argued that the industry will be crippled by a decrease in donations, the uniform opinion for passing bans on anonymity stems from a child’s right to know their medical history. It is also supported by the fact that DNA testing has, and will continue to eradicate anonymity anyway. Australia named its own anonymity ban after Narelle Grech, a donor-conceived woman. She fought for fifteen years to find her biological father, only to succumb to cancer six weeks after accomplishing her mission. Australia decided that Narelle would be the last child to be treated unfairly just because of the way she was brought into the world.
The only question for the US is whether
Colorado will remain a minority rule, or whether it will change the nation for
the betterment of donor children and their families.
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