1. The
Halachic Obligation to Preserve the Parent’s Identity
The
right to information regarding the identity of one’s biological parents
is a regularly recurring problem. This touches on a person’s right, after
growing up, to trace his genetic roots, in effect preventing incest and the
possibility of birth defects which might result from the union of close
relatives.[1]
Jewish
law absolutely prohibits producing children when it is clear that their legal
father’s identity will remain secret.[2] Thus, for example, a widow or divorcee is
prohibited from remarrying within three months of the end of her previous
marriage.[3]
This is
intended to prevent any uncertainty regarding the biological father of any
child which the woman might bear at the beginning of the second marriage.
There
are also convincing ethical reasons in support of preserving the identity of
the genetic father. Among them are:
(a)
A fundamental human right to trace one’s
origins.
(b)
The prevention of incest and genetic birth
defects which might result from the union of close relatives.
2.
The Fundamental Human Right to Trace One’s Origins
In 1984
Swedish legislation established the right of a child born as a result of
artificial insemination to learn, on reaching maturity, the identity of his
biological father. Swedish law, considered among the most advanced in the
Western
world, recognizes the unreasonableness of irreversible separation between a
person and his biological roots.[4] So this fundamental human right is
preserved in Sweden so that any adult person, whether naturally conceived or
born of donated sperm, can know his genetic father.
This
clear position underlying the Swedish law declares that “neither of these
interests [of the adoptive parents and the natural parents] seems strong to
deny a person essential knowledge about his own identity should he wish to have
it. There can be few personal rights more fundamental than the right to know
one’s parentage.”[5]
There are negative psycho-social ramifications
to not knowing the identity of one’s parents. More and more adopted
children are expending efforts to trace their biological parents in order to
complete their sense of personal identity.[6] One clinical study points to emotional tension
observed in adopted children, resulting from the absence of clinical genetic
data regarding their biological parents.[7] Other studies also point to medical damage
resulting from not knowing one’s biological parents.
It seems
that even without these studies we would conclude that the essential human need
to build an individual identity includes the right to know one’s genetic parents
even in the absence of any potential medical damage, for in the absence of
information identifying one’s parents, no one can complete his self-identity.
So a fundamental human right in enlightened society would be abrogated.
Thus,
new regulations were instituted in England regarding provision of information
on donors of sperm, eggs and fetuses, which became valid on 1 July 2004. These
regulations differentiate between information received from a donor before
April 2005 and that received afterward. Regarding information received from a
donor that is held by the Human Fertilization and Embryology Authority (HFEA):
HFEA must provide information on the donor following a request presented by a
person born through donation of sperm/egg/fetus, who has reached 18, without
providing information that might reveal the identity of the donor. Regarding
information received after April 2005, the Authority will also provide, on
request, details on the identity of the donor, such as surname and first name
of donor; donor’s date and place of birth, a physical description of the
donor and his last known address.[8]
Claims to the contrary, supporting sperm
donor’s anonymity despite the damage done to their offspring, generally
rely on the donor’s right to privacy. The donor’s right to privacy
may indeed be weighed against the more fundamental right of the offspring to
preserve his identity.[9] The offspring’s right is, of course, more
fundamental.[10]
Indeed, the Swedish experience demonstrates that it is possible to
establish a set of normative laws which prevents conflict between these two
rights: Prior to the donation, the donor is made aware of the offspring’s
legal rights. His agreement to donate under the framework of the law thus
constitutes his willingness to have his identity revealed in the future. The
Swedish experiment demonstrates that a set of normative laws can preserve the
right of the offspring to identify biological parents without reducing the
willingness of the donor to donate, although the donors’ socioeconomic
profile might indeed be affected.
In the State of Israel, the Aloni Commission at
first proposed in its interim report that this universal right should be
preserved in Israel as well. Accordingly, any child conceived of donated sperm
would have the right, upon attaining maturity, and after receiving appropriate
guidance, to learn basic details concerning his biological origins. Further,
this right to knowledge would not impose any legal obligations on the donor.
This suggestion was indeed more limited than the liberal Swedish approach and
called for establishing the right of the offspring to receive unconditionally
non-identifying information regarding his biological parents. Receipt of
identifying information was to be dependent on the consent of the biological parent.
Acknowledging this right of the offspring
requires a registration system encompassing both the identity of genetic
parents and the identity of the legal parents who raised the child. The Aloni
Commission even indicated that such arrangements are already mandated by
legislation in England and in Australia.[11]
After publication of the Aloni
Commission’s interim report, two gynecologists appeared before the
Commission and informed it that the Swedish law led to a significant decrease
in sperm donation. They did not provide the Commission with any details
regarding the degree of this decrease. Nor did they provide any data regarding
changes in the characteristics of the donors or the ramifications of financial
compensation paid to the donors. The common claim that granting a future right
to receive information regarding the donor’s identity would lead to a
drastic decrease in the number of potential donors remained unsupported by any documentary
evidence.[12]
In order
to clarify the matter in a more definitive manner, I met with Prof. Lars
(Lasse) Dencik[13] in
Copenhagen in January 1996. Prof. Dencik was involved in the debate and the
recommendations prior to the Swedish legislation. According to him, reports
disseminated around the world regarding the situation in Sweden were simply
incorrect. In fact, there was no decrease in available donors. The one change
which did occur involved the donors’ socioeconomic profile. Instead of
young, poor donors who donated sperm for financial compensation, donors after
the passing of the new law the donors were older, financially better off and
more responsible because they were not concerned with producing another
offspring who might, upon attaining maturity, track them
, down.
In effect, there was no decrease in the number of donors and there were no new
difficulties in finding donors after the passing of the new law.
We are
left with the impression that the uncalled for conclusion that Sweden suffered
a decrease in sperm disseminated by certain parties wishing to block liberal
tendencies which would protect the right of offspring to track down their roots
and to maintain the status quo ante according to which finding
one’s genetic father was purposely rendered impossible.
In fact,
the strongest reason to maintain the status quo is the operational convenience
of the fertility clinics. Strict adherence to the law regarding the
preservation of adoption information and the maintenance of an orderly,
regulated adoption register would be highly inconvenient for the clinics which,
without legislation mandating such a register, operate without the need to keep
such records.[14]
Those
who wish to deny the offspring’s right to knowledge regarding his
biological parents claim that adoption cannot be used as a model because in
cases of adoption there is greater risk of the offspring’s discovering
the fact of adoption from his peers even if his parents try to maintain the
secret. In such a case the offspring will perceive the fact of adoption as a
double betrayal encompassing both his birth parents who appear not to have
wanted him and his adoptive parents who hid the facts from him. In medically
assisted fertility cases, on the other hand, the chances of maintaining secrecy
are much greater and revealing the facts would entail no element of rejection
or abandonment.
In my opinion, these claims are baseless. These
are my reasons:
1. The
fundamental human right to know one’s biological parents is in no way
dependent on the possibility or impossibility of maintaining secrecy. We are
speaking about a fundamental human right, which is unconditional, as understood
by the Swedish legislature.
2. In
modern times it is impossible to hide from a child the fact that he is the
product of medically assisted fertilization with donated sperm even if the
procedure were conducted in the utmost secrecy. The reason for this is simple:
HLA and DNA testing is quite common and shows definitively that the offspring
is the product of donated sperm.[15] Discovery of this fact after it had been hidden
for many years would certainly not contribute to a person’s mental health.
It is
similarly claimed that after more than forty years of experience in sperm
donation there is no verifiable evidence that offspring have any emotional need
to know who their biological parents are despite clear indications that adopted
children do have such a need.
This claim too, which is based on the absence
of evidence, cannot subvert the fundamental human right to know who one’s
biological parents are. Remember too that forty years ago similar claims were
heard in opposing granting adopted children this right. Then too “there
was no verifiable evidence that children have a need to know.” Only in
the course of time has this need become apparent, as is codified in Israeli
law, one of the most advanced in the Western world, and as has recently been legislated
in other liberal countries.
The fundamental human right to know who
one’s biological parents are was acknowledged in 1989 in the official
United Nations “Convention on the Rights of the Child.”[16] This Convention recognized the child’s
rights to maintain its identity and familial lineage. It follows that the
change accepted by the majority of the Aloni Commission[17] does not accord with the International
Convention of 1989.
The will
of a human minor to know his/her origin “in order to maintain its human,
familial and property rights” was recognized as a fundamental right by
the Supreme Court as well in 1994. The Chief Justice of the Supreme Court of
Israel, M. Shamgar, expressed the majority view of the Court:
“Minor
enjoys the right to human dignity. Among other things, he is privileged, for
the sake of maintaining personal human dignity and for the sake of guaranteeing
his legal rights according to his personal law and the laws of property rights,
to reject categorization as children-without-known-fathers. Rather, he may
demand to know who his father is... Further, proper regard to the benefit of
the child is one expression of human dignity
The
minor’s objection to anonymity is reasonable and accepted. There are
those who claim that man’s superiority over animals consists, among other
things, in man’s knowledge of his origin. This means that the right to
know one’s immediate origins is part of our charge in guaranteeing human
dignity.
...In
balancing these rights, the minor’s right prevails as he is liable to
remain entirely devoid of the right to dignity and benefit and to be seriously
damaged in his human personal and property rights if someone else’s right
“not to be known” is allowed to prevent or even prohibit a
reasonable decision by the court of jurisdiction which is responsible for
balancing between the benefit of the plaintiff and that of the minor.”[18]
3.
Preventing Incest and Congenital Defects resulting from the Union
of Close Relatives
The
Aloni Commission also considered the possibility of using a register in order
to prevent incest. From a biological point of view there is no doubt that the
offspring’s genetic characteristics are inherited from its biological
parents. Similarly, it is known that the union of biological siblings greatly
increases the incidence of serious birth defects in their offspring. Such
offspring are “highly exposed to illness and death”.[19] Although our concern here is with marriage of
paternal siblings with no maternal relationship and although the risk of severe
birth defects is smaller in such cases than in full siblings, genetic
calculations show that the risk is still rather high. This fact as well
supports keeping a record of the genetic father in order to avoid incest and
the union of genetic siblings.
Some people feared that allowing the civil
registry office full access to a person’s data, as is the case with
adopted children seeking a marriage license, might adversely and unnecessarily
effect the fundamental right to privacy. Therefore, as a compromise, the Aloni
Commission agreed in its interim report to limit the right to access so as not
to adversely effect the principle of privacy, while simultaneously preventing
incest. The solution agreed upon in the Commission’s report included the
right of access to computerized information which would cross match the data of
couples seeking a marriage license and either verify or reject any genetic
relationship. The computerized report would not provide any additional
information in cases where there is no genetic impediment to marriage.
In order
to avoid stigmatizing children born as a result of medical fertilization, the
interim report agreed to include children not born through medical
fertilization in the register as well. The central register, according to this
proposal, would be intended to identify any and all cases of inappropriate
genetic correlation between candidates for marriage.
After publication of the interim report, the
Aloni Commission heard further opposition to maintaining the child’s
right of determining, upon attaining majority, his biological origin. Some
claimed that the probability of incestuous marriage as a result of artificial
insemination is no greater than the existing risk of incestuous marriage in the
general population, where adulterous unions could have the same result. No
factual support could be brought to support this claim.[20] Indeed, even according to this claim, the risk
of incestuous marriage must increase. Further, this increase is not due to
personal, uncontrollable factors but rather to medical technology which can be
easily monitored to prevent any breach. It seems that this claim must be
rejected in the face of the offspring’s right to seek its roots and
society’s obligation to prevent, as far as possible, incestuous marriage
and preventable birth defects.
Some respondents claimed that even in the face
of risk of genetic disease resulting from the relatedness of the candidates for
marriage, given expected technological advances the couple can choose to
undergo genetic screening,[21] thereby eliminating the risk of incest and
genetic disease. In fact, it is clear that as long as such screening is not
obligatory, most of the population will choose not to be tested. Thus the
possibility of screening cannot be relied upon to prevent incest. It follows
that this claim too does not justify a rejection of the register which is
intended to prevent medical problems arising from the union of relatives.
Others claimed that we can significantly reduce
the risk of incest by limiting the number of pregnancies which a single sperm
donor can effectuate. Such a limitation would act to eliminate
“professional” sperm donors.[22] This claim also must be rejected because, among
other reasons, such limitation cannot be enforced without a complete central
register such as exists in Great Britain. Today there already exist guidelines
which limit the number of donations a single sperm donor may make. But
professional conventions in Israel have shown that such guidelines are not
followed and cannot be enforced.
Still others were concerned about the
“inevitable” possibility of error in the register or in the
computerized routing of the data. They were further concerned about the
possibility of illicit hacking of the computerized data base.[23]
In my opinion, these claims cannot alter the
Commission’s recommendation to preserve parental data because there
already exist today extremely sensitive data bases where any leaking would
constitute a danger to national security or national economy. Nonetheless, none
of these data bases has experienced any leakage. Today we have very effective
technological solutions to prevent the loss of sensitive data. There is every
reason to assume that similar solutions will be effective for the parental data
base.
We can
also overcome, without causing irreversible damage, the claim that errors might
be made.
It is
therefore clear that there is no real basis for the opinion that the damage
which might result from operating a central register would exceed the benefit
which would accrue in protecting the offspring’s right to knowledge. Such
an opinion is not based on fsacts or real data, but rather on subjective
speculation and irrational fears.
The natural
conclusion is that both on the basis of the fundamental human right to trace
one’s genetic origins and on the basis of public health policy intended
to prevent congenital birth defects resulting from the union of family members:
a. The
right of the offspring produced as a result of sperm donation must, upon the
right to know his genetic parents. This right is to be preserved through the
registry system described above.
b. The
data relating to the genetic identity of the sperm donor must be held in a
secure system in order to enable the offspring to realize his right to know who
his father is and to identify his genetic roots. This will prevent incest as
well.
4.
Summary
It would not be wrong to say that a uniform
registry system for sperm donors and their offspring can in effect solve the
two problems and enable realization of the offspring’s right to find his
biological roots[24]
regardless of which parent donated the reproductive cell.
It
follows that the absence of a supervised registry system recording genetic
parents conflicts with the values of an enlightened society, the rights of the
individual and the benefit of the offspring.
It would seem that within a few years we will
look back in amazement to this period when the fundamental rights of offspring
are infringed.[25] Modern legislatures and legal systems must
guard the fundamental human rights including those elements which touch on the
individual’s identity. This surely includes the right of every person to
know his parents and to fully grasp his identity.