MAIN EVENT. A Good Place to Get Started --- a.k.a "Table of Contents"

The Right to Know

Two Views on Identity Rights &

Assisted Reproductive Technology

by Kevin Carey & Ron Morgan

KEVIN CAREY considers the principles underlying the rules of biological disclosure. One of the characteristics of our age which, to demonstrate that few things are unique, we share with the Fourteenth Century is our failure to develop ethics to keep pace with knowledge. One key area is, of course, genetics, the science of what and who we are, so it is surprising in a species obsessed, in spite of a veneer of civilisation, with the survival of the race at all costs, that there has been far more controversy in the United Kingdom about genetically modified food than about genetically modified people. Of course, in strictly biological terms the processes of modifying genes in plants and engineering conception through various forms of artificial insemination are different but the root ethical question is the same: to what extent should we interfere with the natural processes of reproduction? In both biological and ethical terms we have answered this question emphatically with the contraceptive pill on the one hand and in vitro fertilisation on the other. Priorities might change at last with the possibility that the UK may legislate, giving the offspring of donated sperm (and, one presumes, eggs) the right to know where they came from. This is clearly a case of sloppy rights theory being passed off as ethics. Let us start with first principles concerning the right to conceive and bear a child which is the root assertion from which the "Right to know" has to be derived. Whatever is meant by 'The Right' of a woman to bear a child by virtue of a known or unknown egg or sperm source, that 'Right' cannot be derived from the two sources of rights which usually form the basis for rights theories, namely: natural law; and inherent, inalienable phenomena. This is obvious; there is simply neither a natural nor an inherent right of every woman to conceive at will or on the basis of predictability. It is not an individual right because its exercise necessarily involves another party so it is fundamentally a social right. The conclusion must be that any 'right' to conceive is a conferred, legislated, social right resulting from an advance in technology similar, say, to the supposed right to health care or education but not in the same class as the right to life, liberty or free speech which derive from basic principles founded either in natural law or the theory of the inherent, inalienable right. Forgive the repetition; if we do not get the basics sorted out the rest will be impossible to handle. Such conferred 'Rights' necessarily have their limitations; they can be withdrawn or modified for any number of good, indifferent or bad justifications; or they can be modified if their enjoyment conflicts with 'Rights' of the same class. This particularly supposed 'right' to conceive and bear a child is also subject to the limitations of all social rights; it cannot be exercised solely by an individual acting in her own perceived best interest. It takes two. So how, in this context, are we to judge the right of a person to know his biological origins. When a woman arranges with a man to conceive and bear a child (as opposed to conceiving by accident or rape), the presumption must be that both parties reach an agreement about the nature of the undertaking. In the case of anonymous sperm (or egg) donation the contract could not be more explicit; that is the ground on which the current legislative proposals are being fought, simply on the practical, contractual, 'Right' of donor anonymity. Being British, the argument is utterly pragmatic and devoid of any serious ethical consideration; if anonymity is made illegal then the number of donors will decrease. In the context of a stable relationship and, even more so in the case of a publicly contracted marriage, the terms of the contract are, paradoxically, not so explicit but without deliberate arrangements being made to the contrary, the presumption is that the child has the right to know the names of both its biological parents. This, again, is pragmatic; if the whole community knows, or thinks it knows, which adults have produced which children then those children should not be deprived of the public knowledge which particularly concerns them. Incidentally, this special place of marriage in the legal system - a public contract which can only be overturned in a court - explains why Diane Blood should have had the absolute right to conceive from the sperm of her dead husband. There is no reason in principle why all deliberate conception and child bearing should be rigidly governed either by total parental anonymity or disclosure. If the arrangements for conception are legal but the biological parents wish, for whatever legal reasons, to withhold that knowledge from a child (in the biological rather than the legal sense) then the child's 'Right to know' must be shown to over-ride the 'Right' to anonymity and must also be shown to be in the best interests of the child. This is the crux of the matter because what the legislation is said to propose, presented as the biological child's 'Right to know', is that sperm or egg donor anonymity should be made illegal. As we have seen, the 'Right' of anonymity and the 'Right to know' are both legislated rights resulting from developments in technology so the key questions concern the basis on which one should over-ride the other. Let us take some cases. Allowing that hard cases make bad law and that some cases are hard to classify, births result either from secret, unarranged conception on the one hand or open, arranged conception on the other. Looked at this way, one knot is untangled; the assertion of the 'Right to know' biological parents (who might have agreed on a degree of anonymity) is being confused with the 'Right' of adopted children to know their biological parents who, in most cases, produced children as the result of an open relationship with implicit and often explicit undertakings. Let us take three more cases. A woman in a war finds a baby in a house devastated by a bomb which has killed all the other occupants. She rears it as her own. In what way would the child, or anybody else, benefit from knowing its biological origins? Next, in the same war a lonely woman is raped by retreating forces and is shortly re-united with her advancing husband. She bears a child and the legal father thinks he is the biological father. The child's ' Right to know', realised through a DNA test, would force the woman to unearth a horror she had consciously and subconsciously buried, the legal father would be upset and the child might well be damaged. As a good mother, the woman has chosen to limit the damage to herself and within herself. Perhaps in the same war a lonely woman has a casual sexual relationship and a few days later her husband returns. The same conditions apply except that the woman's horror might in this case be guilt. Finally, let us look at the case which the proposed legislation will most often raise. A couple agree that the woman should conceive through anonymously donated sperm. the child's 'Right to know' produces an erstwhile virtuous but now duplicitous mother, a shamed, impotent legal father and a frightened and indifferent biological father. In this light, it is difficult to imagine any circumstances in which the child's 'right' must unquestioningly over-ride all the other 'Rights' of a similar class in the case and where the exercise of the 'Right' is in the child's best interests. Our culture accepts, indeed could not survive, without a degree of deception in sexual matters, often for self-protection but often, too, for the protection of others. If we are not - and we are not - prepared to make adultery and fornication illegal, then it is difficult to see why we should want to legislate a rigid code of biological disclosure.

RON MORGAN provides a counter analysis. G21 asked me to write on the new law in England, banning anonymous conception using assisted reproductive technology (ART), because my work with Bastard Nation deals directly with citizens' Right to Know. I am a reluctant spokesperson in this case, and I'll tell you why. I think the best person to advocate for a "test tube baby's" Right to Know would be a test tube adult, because I believe in the right of self-determination just as strongly as I do in the Right to Know. They are out there, "bastereds", some pushing thirty. Like bastards, they get to see themselves represented in the media as perpetual children, as "babies". You can bet that they will have a lot to add to this debate. In the meantime, though, let's look at the discourse that surrounds them. Like adoptees, and unlike "normal" people, people conceived by donor sperm, egg, and gamete are called "children" or worse, "babies", regardless of their age. It is assumed that no matter what their station in life, they are perpetually defined by their conception and their relationship with their parents. This process is called infantilization. It is much easier to abridge or violate someone's rights when we can keep them babies. These people should have the same rights as any other citizen. If they are adults, then they should enjoy the rights of all other adults. There seems to be a growing sense of entitlement among the infertile, spurred by technology, that they have a "right" to conceive by any means necessary, and barring that, to parent by adoption. I am dubious of this assertion, although I'm sympathetic to their plight. I would say that the "right to parent" is closer to the notion that we possess the right to pursue happiness, with the implication that the state cannot guarantee that we will get it. The state also reserves the right to interfere with those individual pursuits if they are criminal or violate the rights of others. In this light, people possess a right to attempt to parent, and the state generally stays out of the way. The difference with both the donor and adoption dynamic is that these pursuits have engendered well-heeled industries, and the state has a mandate to oversee just this sort of commercial activity. But more on that later. I've mentioned a Right to Know, but a right to know what, exactly? 1.Identity Human beings have a right to their identity. Seems simple enough. Treaties to that effect have been signed by every nation on earth (with the notable exception of Somalia and the United States), and chances are it's a right you either take for granted, or, if you're a Kurd or some other oppressed internal group, fight for with all the resources at hand. England's statutory shift toward outlawing institutional anonymous conception is a step toward implementing the principle that human beings, regardless of the mode of their conception, have a right to their identity. Identity is defined under these treaties (the UN's Declaration of the Rights of the Child and the UN's Declaration of Human Rights) as composed of biological, cultural, and familial origins. Under the treaties State Parties are instructed to create legal remedies when the right to identity has been deprived, and England's law does just that. The law makes for sound public policy, too. Society, for instance, is ill served by the creation of individuals who have no idea what genetic predispositions they may have for illness, or who may inadvertently commit incest. Society is also ill served in setting up statutes predicated on keeping hidden information of vital importance from the primary party to that information. Society is not generally burdened with its citizen's individual secrets. If, for instance, you went bankrupt or had three failed marriages in a row, it's not the state's mandate to keep these secrets, no matter how shameful they may be to you, from your potential future creditors or spouses. England's new law recognizes that the perceived needs of people to conceive may not supercede the fundamental human rights of the person they create. It's important to consider this when we are told that the new law will decrease the number of donations of sperm and egg, a speculation that implies that the market driven demand for donor sperm, eggs, and gametes somehow outwheighs issues of rights. We would not consider ceding the right of our children to vote, or to avoid torture, simply in order to conceive them, neither should we deny them the right to their identity. 2. Industry Although it's tempting to frame this debate solely in terms of balancing the alleged rights of parents against the presumed rights of their offspring, we would miss a significant point of England's new statute; it is an attempt to regulate an industry, not individuals. The new law makes little note of the alleged right of parents to conceive anonymously, it simply outlaws businesses that wish to pander to them. To return to the theme of sound public policy, the new law establishes a new accountibility to the assisted reproductive technology (ART) industry by offering transparency to the interested parties, including the offspring. The dire predictions that allowing persons created by ART the right to their identity will sound a death knell to the industry is reminiscent of the rhetoric of those here in the US who would refuse adoptees the same right because it would hinder relinquishments. Rather than emphasizing the "specialness" of adoption or ART to defend policies of entrenched secrecy, we should be treating all people as equal, regardless of how they conceive or are conceived. In that light we should note that no one is guaranteed anonymity from their offspring. What is generally acknowledged is an umbrella of confidentiality. In other words, the mode of a person's conception is generally regarded as their business (as well as the business of their parents, who already know how it happened), and the documents regarding their identity are sealed from other parties. It should be no different with ART. It's not your neighbor's business if you were a test tube baby, but it certainly is yours. Sperm and egg will meet in petri dishes regardless of whether the donors' names are taped to the lids. So jeremiads decrying technology outpacing ethical supervision simply don't wash. There is nothing intrensic to assisted reproduction technology that demands anonymity, the practises being outlawed in England were marketing decisions, based on the twin shames of infertility and sperm donation (It's not likely that a current MP is going to crow about the sperm he deposited while reading the Classics at Oxford). Thankfully many current practitioners of ART have evolved more enlightened policies. England, by abolishing the curious institution of commercial anonymous conception, has elevated these practices to the law of the land, and should be applauded. FEED THE HUNGRY. You can help someone else in this world and IT WON'T COST YOU A DIME. If you simply remember to drop by The Hunger Site every day that you surf and click a simple button ONE LESS PERSON WILL GO HUNGRY. The food is distributed by the United Nations World Food Programme and paid for through the sponsorship of companies that care. Do your part.

LINKS RELATED TO THIS TOPIC

"For the sake of clarity and brevity I didn't go into how the right to identity got included in the two UN treaties. The sections on identity were drafted by the Abuelas de Plaza de Mayo of Argentina, [This site is in Spanish and English. --Ed.] who began searching for the children born of the Disappeared and kidnapped into illegal adoption, often by the very officers who'd tortured and killed their parents." (Ron Morgan)

United Nations Declaration and Convention on the Rights of the Child

Kevin Carey can be reached via e-mail at "humanity@atlas.co.uk".

RON MORGAN is a writer and social activist who resides in San Francisco, CA, with his wife and three daughters. Mr. Morgan, who discovered that he himself was an adoptee at the age of 36, is Events Coordinator and a member of the Executive Commitee of Bastard Nation. His current project is the "Bastards on the Boardwalk" event to be held in Atlantic City, NJ, 9-12 October of this year. Mr. Morgan has lobbied various state legislatures in the United States, and written extensively on the issue of adoptee rights. Mr. Morgan is also a G21 alumnus.

| THE PREVIOUS DAY ONE | The NEXT DAY ONE |