Unintended Consequences: Prohibitions on Gamete Donor Anonymity and the Fragile Practice of Surrogacy

Abstract

Prohibitions on anonymous egg and sperm donations are a growing international trend. U.S. law does not prohibit anonymous gamete donations. However, an expanding movement is advocating a shift to an open identity regime that will ban anonymity. My earlier study of three jurisdictions: Sweden, Victoria (Australia) and the United Kingdom, which adopted prohibitions on gamete donor anonymity, showed that these prohibitions played a role in creating shortages in egg and sperm supplies. Adoption of prohibitions on anonymity in the United States could result in similar shortages. This Article focuses on the potential effects of prohibitions on anonymity on the practice of surrogacy. The practice of surrogacy in the United States is highly dependent on donor eggs. Unlike most jurisdictions that prohibit gamete donor anonymity, the majority of U.S. states that permit surrogacy, distinguish between gestational and traditional surrogacy. These states provide legal certainty only to gestational surrogacy while leaving traditional surrogacy in a legal limbo. Infertility practitioners endorse the legal preference for gestational surrogacy. Donor eggs are used only in gestational surrogacy but not in traditional surrogacy. In traditional surrogacy, the surrogate uses her own eggs and is the genetic mother of the conceived baby. However, in gestational surrogacy, the eggs of the intended mother or a donor are used and the surrogate is not the genetic mother. The Article advises that a shift toward an open identity system in the United Stares should be considered with extra caution because of the potential consequences to the practice of surrogacy. Prohibitions on gamete donor anonymity causing a scarcity in donor eggs could force a return to traditional surrogacy, with the accompanying legal uncertainty. Alternatively, the legal uncertainty enveloping traditional surrogacy could deter those in need of surrogacy from seeking it altogether thereby significantly contracting the practice of surrogacy.