Abstract
Donor-conceived families are transforming the way we think about family life, and Cahn’s The New Kinship carefully explores questions—especially legal questions—unforeseen by the medical practitioners who first advanced in vitro fertilization (IVF) and later the standard practice to freeze donor sperm, extract donor eggs, and implant embryos into genetically unrelated women.
Cahn chronicles the changes that have occurred in assisted reproductive technologies and their social and cultural impacts over the last half-century. As more women postpone first children into their thirties when their fertility declines, advanced reproductive technology (ART) has become more in demand. The rapid expansion of the fertility industry, especially the commercialization of gametes, has given single women and couples (including same-sex couples) the opportunity to select their own gametes. Moreover, the ability to search on the Internet for others who share the same donor has created new relationships and connections. Cahn calls these “donor conceived family communities” or “donor kin families or networks.” The book emphasizes the stakeholders (from the fertility industry to donors, parents, and offspring) involved, offering only a nod to how gender might shape stakeholders’ views. However, the book’s strength is in how it sheds light on the numerous areas of law that comprise the donor world, and how it offers models for regulating the fertility industry that could protect members of these new donor-offspring families.
Cahn draws upon her legal expertise to explore the legal standing of gamete providers and donor offspring. Overall, she reports, the law does little to foster social ties within families or between nuclear families and other relatives. The rise of donor-conceived families who have used third-party gametes to have a child has spawned revision of the Uniform Parent Act, particularly in how it defines the legal standing of parents and donors. A married heterosexual woman or single woman who conceives via egg or sperm donor through ART is the legal parent (her intent is critical); under these circumstances, donors have no rights.
However, Cahn notes, same-sex couples, married or in domestic partnerships, are not explicitly addressed by the UPA. Most states terminate parental rights of sperm donors and some terminate rights of egg donors. Known donors are not uniformly dismissed as potential parents. The donor and recipient can have a variety of relationships that exclude the donor or give the donor quasi-parental status. Some states have yet to address parentage when couples are not married, when couples use egg donors, or when insemination occurs outside the doctor’s office. Cahn turns to case law to examine whether donor kin families—specifically the donor offspring who are genetic half siblings—have legal rights. She writes that the law is largely unsettled and only sometimes favors sibling association rights. This does not preclude a future in which sibling connections are legally protected, a situation that might allow donor-sibling recognition and protection. Cahn poignantly illustrates the unevenness across states as to who can make kin-claims. Her intent is not to create a new category of families but to provide an argument about how donor-conceived families, who presently have no rights and obligations to one another, could voluntarily opt in to existing privileges and obligations of family members to one another through voluntary designation.
Social scientists have found that disclosure and the desire of donor offspring to know more about their genetic parents are important to donor-conceived families. This shifts the conceptualization of the donor’s status to that of personhood, not simply a cell provider. Similarly, a genetic tie may ignite a search for other donor-conceived offspring, but the social connection is what makes these kin networks family. Cahn argues that consequently a paradigmatic legal shift from an emphasis on medicine and technology to family and constitutional law would better serve the interests of donor-conceived families.
Ultimately, reproductive technologies pose challenges for the future. The fertility industry is not simply about new and improved biotechnologies; it is about creating families. Cahn offers compelling reasons why regulatory oversight at the federal and international levels is inadequate and how it could be improved. Her eye-popping evidence on the limited genetic testing conducted on donor gametes and on how reducing the number of children born from a single donor would minimize disease transmission are just a few examples she provides. If donor anonymity were banned (which several other countries have already done), then all offspring would have access to information about their donor. If donor-conceived offspring knew of one another, they would not have to post on websites hoping for matches. These actions would recognize the rights of donor-conceived people. Without regulation of what has become global big business, existing disparities will be exacerbated and very likely new forms of discrimination and inequality will arise.