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June 01, 2016

Whose Rights Are They, Anyway?

The law has continued to struggle to keep up with huge advances in technology when it comes to conceiving children. Assisted reproductive technology (ART) has made what was impossible an everyday event. In the process, the law, along with societal norms, is still playing catch-up. Countries have taken dramatically different approaches to the challenges presented by these developing technologies. This article will compare and contrast some of the uniquely American perspectives with prevailing norms in other parts of the world.

Right to Reproduce vs. Rights of the Child

In an era of rapid genetic advances we look to our own genetics for insight into our past as well as our future. But do we as individuals have a right to know who supplied the genetic material that created us? The answer to this question may depend on our method of conception. ART, particularly where donor gametes are used, can create a tension between the reproductive rights of the participants (the intended parents), the identity rights of the resulting children, and the privacy rights of the gamete donors. Western Europe and the United States have taken different approaches to balancing these competing rights.

The United States has left ART largely unregulated. Americans enjoy broad reproductive rights in this area, with a nearly unrestricted ability to choose gamete donors. Children conceived with the assistance of a gamete donor may have no knowledge of the circumstances of their conception, just as children who are conceived without the use of assisted reproduction have no assurances that the individuals who they identify as their parents are in fact their genetic forebears.

By contrast, Western Europe is generally increasing the rights of the child to know his or her origins, particularly as articulated under the 1989 United Nations (U.N.) Convention on the Rights of the Child1 and the European Convention on Human Rights (through decisions by the European Court of Human Rights).

Article 8 of the Convention on the Rights of the Child provides: “States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.”

Article 8 of the European Convention on Human Rights provides: “Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Both of these international instruments have been interpreted at the European level as well as by many states within Europe to provide children an increased right to access their genetic origins. Depending on one’s point of view, children who are conceived and born with the help of ART may therefore have either greater rights than children conceived without assistance, or additional protections for their identity rights.

While the nations of the European Union have the same framework conventions, the interpretation of the provisions has varied significantly. For example, the United Kingdom and Sweden prohibit anonymous gamete donation, while in Spain and Greece anonymity is mandatory. Intended parents in Europe have the ability to “forum shop,” deciding whether they want to go to a country that allows for disclosure to the child or one that prohibits it.

In vitro fertilization (IVF) doctors originally believed that gamete donation needed to be anonymous, convinced that there would be no donors otherwise. No one would serve as a donor out of fear of his or her identity being discovered, incurring liability for child support, and other complications. Following changes to the law in Australia and the United Kingdom, there is now evidence to support this concern.

Adults conceived and born from anonymous donation have been very vocal about having their rights protected, arguing that everyone else knows where they came from—why shouldn’t those born from anonymous donation? This rights-of-the-child-based argument has had an impact. Australia changed its law 12 years ago, requiring open-identity gamete donation. It is the right of the child after turning age 18 (with appropriate safeguards as to counseling and recordkeeping) to locate the donor and to locate siblings (provided that the donor-siblings consent to their identity being released). Following lobbying from adults who were conceived from anonymous donors, the Australian state of Victoria now allows these adults to learn their genetic origins even without the consent of the original anonymous donors. The right to know your own genetic origins trumps the right to privacy and anonymity of the donor—even if the disclosure occurred 20 or more years after the donation.

The change to open-identity donation created a decline in prospective donors. In countries like Australia and the United Kingdom, there are not enough donors to go around. Intended parents in those countries either import gametes from countries where the regime is not so demanding, such as the United States or Denmark, or they travel to countries with more liberal donor regimes, such as the United States, Argentina, Spain, or Greece.

The balance between the reproductive rights of the parents, the identity rights of the child, and the privacy rights of the gamete donor is a delicate one. Aspects of these rights may be considered positive rights, such as in those countries where records about gamete donors are required to be kept. Alternatively, some rights are seen as negative rights, such as the fundamental right to reproduce without government interference in the United States. Additionally, the relative strength of these rights can be questioned. Is an individual’s right to know her genetic origins as strong as the rights of her parents to reproduce, considering that she would not have her identity right in the absence of her parents’ rights?

The move toward an increased right of the child to know his or her origins is bound with the idea that genetic origin is at least a part of the individual’s identity. While the notion of “blood” relatives, or consanguinity, has been a part of human history for millennia, only recently have we refined the ability to identify genetic markers that not only relate people to one another but also provide information about one’s health. Certainly, a child’s notion of who he is does not include an understanding of his genetics. However, as that child grows into adulthood, he may incorporate knowledge of his genetic history into his identity and the way in which he interacts with the world.

Genetics can be a valuable tool to understand an individual’s medical history and to provide insight into the individual’s future health. Debatable, however, is the role of genetics in the creation of the individual self-identity. As the science of genetics and the abilities of ART advance, more questions about the relationship between genetics and the individual will need to be addressed. We may continue to see divergence in approaches to reconcile the rights of the parties involved, including children, until we can reach an equilibrium that balances freedom, privacy, identity, and scientific potential.

Empowerment of Women vs. Commodification of Women and Children

The United States is alone among Western countries in affirmatively allowing women to be paid a fee to be a gestational surrogate. Other countries that allow paid surrogates are the Ukraine, India, and the Republic of Georgia.

Some argue that women ought to be paid a fee to be gestational carriers—that to do so is truly feminist and respectful of their bodies. After all, everyone else in the transaction—counselors, doctors, and lawyers—gets paid. The counterargument prevailing in much of the world is that surrogacy is inherently risky and demeaning to women, and involves the commodification of women and of children. Therefore, women should only be surrogates for altruistic motives in the context of a noncommercial transaction.

Permitting only altruistic surrogacy presents a rose-colored view of the world and ignores the global market for fertility services and surrogacy. If intended parents are unable to access surrogacy somewhere due to a lack of surrogates (because, for example, they are not paid), they will do so elsewhere, either in the United States or Canada, or a developing country.

The landscape continues to change, and sometimes dramatically. Four changes in 2015 illustrate the point:

  • In August, the Supreme Court of Nepal issued an interlocutory injunction banning commercial surrogacy in Nepal.2 Previously, the Nepalese cabinet had allowed surrogacy, but on the condition that Nepalese women did not serve as surrogates. It was alleged that Nepalese women were serving as surrogates despite the ban, and that surrogacy was the commodification of poor women. Some intended parents reported being trapped in Nepal following the decision. Part of the basis for the injunction was the allegation that Nepal, the United States, Australia, and other countries had not protected infants, despite the terms of the 1961 Hague Infants Convention.3 Nepal, the United States, and Australia are not parties to that convention.4
  • In November, the Indian government announced that no surrogacy for foreigners (except those married to an Indian) would be allowed, dramatically changing the landscape there.5 The ban came in response to a court case, where it was alleged that surrogacy was the commodification of poor women’s bodies.
  • In December, in response to allegations of commodification, the Mexican state of Tabasco announced an end to surrogacy for foreigners.6
  • In 2015, intended parents from Australia and other countries, turned away from India, Nepal, and Thailand, went to Cambodia for surrogacy.7 It is not certain that surrogacy is legal in Cambodia.

Intention vs. Genetics: Who Is a Parent?

Often with surrogacy, one or both of the parties are not related genetically to the child. For heterosexual couples, surrogacy is generally an option of last resort, often accompanied by egg and/or sperm donation. For some gay couples, surrogacy is the option of first resort to become parents. These gay male couples will inevitably rely on the help of an egg donor, given that it is increasingly uncommon for the surrogate to be the genetic parent as well—as in the practice known as traditional surrogacy.

It is commonly thought that the intended parents must be related to the child, presumably to provide certainty for the child. But the idea that genetics alone decides who is a parent does not reflect reality. The 40-year-old single female ovarian cancer survivor who wishes to be a mother, for example, will need the help of an egg donor, a sperm donor, and a surrogate—all of whom are connected with the child. Who should be considered to be the parents? In some countries the surrogate, as a result of giving birth to the child, and her husband (if she is married) will be the parents. The intended mother will not be recognized as the mother. In other jurisdictions, the intended mother will be declared the mother, based on her intentions, not her genetics. In the context of a couple, it could be considered discriminatory to allow one partner to substitute his or her gametes with those of a donor (as in the case of sperm donation where statutes provide for the paternity of the intended, nongenetic father), but not allow the other partner to do the same (as with egg donation, particularly in surrogacy). Once the intended parents have procured gametes lawfully, with the consent of all parties involved, they should have the same legal standing as the intended parents’ own gametes. In the end, this is also fair to the child, as she will not have a different legal relationship with the parents raising her than other children who were not born through assisted means have with their parents.

The requirement of a genetic connection also precludes the use of donated embryos. In the United States alone, a study conducted over a decade ago concluded that there were over 400,000 embryos in frozen storage in this country.8 That same year, it was estimated that 50,000 additional frozen embryos accumulated each year.9 These cryopreserved embryos have the potential to help an infertile couple achieve their dream of parenthood, and a government-imposed requirement for a genetic link between the parents and the child would frustrate this possibility.

How Far Should We Go?

As ART continues to advance, new possibilities raise legal and ethical questions. One possibility, human reproductive cloning, has already garnered much attention, in popular media as well as in legislatures. Many, but not all, U.S. states have bans on reproductive cloning. Similar bans exist in many countries, and the U.N. adopted a nonbinding declaration seeking to prohibit cloning.10

Aside from the sensitive issue of cloning, however, there is another thorny issue that attracts much less attention: genetic selection, and potentially genetic manipulation, of embryos. Preimplantation genetic diagnosis (PGD) allows us to screen an embryo before it is given the possibility to develop into a child. PGD can be used to screen for genetic disorders that could limit the life of the child should he or she even be born, such as Tay-Sachs disease and cystic fibrosis. Somewhat more controversial is the screening for disorders that may not threaten life, but could impact the quality of life. Down syndrome and congenital deafness are examples of these. Although this did not involve PGD, a Maryland same-sex female couple, both deaf, created an uproar when they sought out a sperm donor with congenital deafness so that they could have deaf children.11 Already, the use of PGD for gender selection is controversial. Should we allow screening of a disposition for an adult-onset condition, such as type 2 diabetes? Should we be able to choose our child’s eye color? These are unanswered questions debated by ethicists and completely unaddressed in U.S. law. The United Kingdom, on the other hand, regulates the nature of PGD closely through the 2008 revisions of the Human Fertilisation and Embryology Act of 1990. The 2008 revisions allow for embryo testing (PGD) under defined circumstances, and licensed clinics must seek approval to test for conditions that are not otherwise approved.12 As more genetic markers for conditions and traits are found, our ethics and laws will be challenged by the possibilities.


Assisted reproductive technology has given people struggling with infertility an unprecedented chance to achieve parenthood. However, assisted reproduction challenges many fundamental assumptions that we have had in our laws about who we are, how we relate to others, and how far our scientific and reproductive liberties extend. As laws and regulations struggle to keep pace with the advancements, we will see many different approaches to the problems. It may take generations to sort through the possibilities.


1. The United States has signed, but not ratified, this convention. It is a point of contention in Western Europe that the United States is the only country not to have ratified this convention. Every other country has done so, even Somalia.

2. Darren Wee, Nepal Suspends Commercial Surrogacy, Gay Star News (Aug. 27, 2015),

3. Convention Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Infants, Oct. 5, 1961, 1969 U.N.T.S. 145 [hereinafter Hague Infants Convention].

4. 10: Convention of 5 October 1961 Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Infants: Status Table, HCCH, (last updated Aug. 1, 2013).

5. Philip Sherwell, India Surrogacy Ban Dismays British Couples, Telegraph (Nov. 18, 2015),

6. Tabasco Lawmakers End Foreign Surrogacy, Mex. News Daily (Dec. 15, 2015),

7. Lindsay Murdoch, “Somebody Has to Be the Icebreaker”: Aussies Seeking Babies Turn to Cambodia, Sydney Morning Herald (Oct. 30, 2015), cambodia-20151027-gkjfj5.html.

8. David I. Hoffman et al., Cryopreserved Embryos in the United States and Their Availability for Research, 79 Fertility & Sterility 1063 (2003).

9. John Schieszer, Couples’ Feelings Mixed about Extra Embryos, Reuters Health (Oct. 14, 2003),’_Feelings_Mixed_About_Extra_Embryos.html.

10. International Convention against the Reproductive Cloning of Human Beings, G.A. Res. 59/516, Annex, U.N. Doc. A/59/516/Add.1 (Feb. 24, 2005).

11. Liz Mundy, A World of Their Own, Wash. Post, Mar. 31, 2002, at W22.

12. See Human Fertilisation and Embryology Act, 2008, sch. 2, para. 3 (U.K.), available at; see also Embryo Testing, Human Fertilisation & Embryology Authority, (last updated Apr. 17, 2014).

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