For obvious reasons, someone who is adopted might want to seek out the identity of their biological parents. Someone conceived with donated eggs or sperm might want to do the same. Most people sympathize with that desire, and many want the legislature to support those people. But, as the great free-market writer Henry Hazlitt reminds us, we should look not only at “the direct consequences of a proposed course” but “also at the longer and indirect consequences.”
The indirect consequences of revealing parental and donor records to people who are adopted or conceived via donation are that fewer people will put up their children for adoption and donate eggs or sperm.
I don’t have data on this, but if you think through the relevant scenarios you’ll realize I’m obviously right. I’m not sure what the magnitude of the shift is. If a person projects that, years down the road, they may get a knock on the door of someone put up for adoption or someone conceived through a donated egg or sperm sample, the person may think twice about going the route of adoption or donation. Not all people will worry about that, but some will. And people make decisions on the margins.
Given the recently leaked Supreme Court decision on abortion and this year’s state legislative effort to codify the right to an abortion, this issue should have especial salience for conservatives, at least on the adoption front. If a woman is pregnant and she does not intend to keep the child, what is the alternative to her putting the child up for adoption? It is to get an abortion.
Especially if you’re a Coloradan against abortion, you should want to make adoption as easy, painless, and low-cost as possible for those potentially putti
ng a child up for adoption. Exposing parents to potential future unwanted contact with a child imposes a sort of cost and makes abortion relatively more appealing. (See a 2014 media release from Adoption Search Resource Connection and a 2015 Denver Post article for details about the Colorado laws on this matter.)
Regarding an egg or sperm donor, the case for opening personal records to the person conceived via donation is even weaker. From what I can tell, people donate eggs or sperm either out of the goodness of their hearts or in order to get paid. What happens when you in effect tell these potential donors, “Some day in the future the children conceived via your donation might come knocking on your door”? Obviously some people will be put off by that. Do would-be parents looking for donors want to discourage the sort of donor who thinks through long-range consequences?
Another key issue here is that of contractual rights. Obviously before a person is even conceived the (future) person does not have rights. The parties that do have rights are the would-be parents looking for a donor and the potential donor. Those parties should be able to reach a contractual arrangement, either directly or indirectly via a clinic, to secure the donation. Someone who wants to donate eggs or sperm only on the condition that their personal information never is revealed to the child so conceived properly has that right. This is just not an area where government rightly intervenes.
This discussion brings us to this year’s bipartisan House Bill 224. The bill (according to its summary) requires “a donor to agree and consent in writing, prior to donation, to the release of identifying information and medical history . . . when any DCP [that’s “donor-conceived person”] conceived using the donor’s gametes reaches 18 years of age.” It is just fantastical to think that this won’t give some potential donors cold feet.
The bill also requires “a gamete bank to take good-faith measures and keep adequate records to ensure that a donor’s gametes are used to establish no more than a total of 10 families in or outside of Colorado.” But what business is that of politicians? Clinics should have to disclose to potential parents how many biological step-siblings a “DCP” might have, but then the choice should be up to the prospective parents.
What this bill does is needlessly add regulations (and hence costs) to a certain sort of business, in violation of people’s rights to contract. So I have to conclude that Jon Caldara (who is maybe-kinda-sorta my boss) is (uncharacteristically!) wrong about this issue. I hope that, should this bill cross the legislative finish line (it’s always tough writing about the legislature during the frenzied final days of session), the governor vetoes it.
Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.
