In 'Whose Sperm is it Anyway?' (BioNews 675), Dr Anna Smajdor writes that the law should not be changed to require spousal consent for the donation of sperm. Dr Smajdor argues that gametes should not be considered a 'marital asset' in law, and to give one spouse a property interest in the body of the other is to bring us back to a time when husbands controlled not only the property of their wives, but their bodies as well.
While I do not disagree with this assertion, we should perhaps not be so quick to dismiss the claim for gametes as 'marital assets' solely because of the terms upon which it is based. It may be that the phrase 'marital assets' denotes the wrong approach to a question that does indeed need to be asked: are we paying sufficient attention to the effect of donation on other members of the donor's family, as well as considering their relationship to the donor-conceived child?
In her letter to the Human Fertilisation and Embryology Authority (HFEA), the unnamed woman who argued that her consent should have been obtained before her husband donated sperm on the basis that it should be treated as spousal property (reported in BioNews 671), also cited the very real possibility of her spouse's donor children, should there be any, making contact in the future. She highlighted the effect this might have on herself and on her son, who may suddenly be presented with half-siblings. This is actually the more legitimate concern.
While I do not wish to suggest that gametes themselves should be treated as legal persons, the process of donation for reproductive purposes should always be conducted in a manner which acknowledges that, if all goes well, a person with legal rights, as well as social and psychological needs, will result. While we do not have property interests in our own tissue once removed from our body, gametes are not simply ordinary human tissue and their donation should not be discussed in the same terms as donation of blood or hair, for example - unless it is for similarly non-reproductive purposes.
Blood and hair do not have an interest in knowing their biological origins, yet we have legislated to protect such interests in law among adopted and donor-conceived adults, allowing access to identifying information. This move was made in part because of a rather large volume of research showing that the greatest psychological harm experienced by members of such families is inflicted through the keeping of secrets. And because of this, it is now also considered best practice to counsel families towards early disclosure in both cases.
Seen in this manner, the HFEA (or its replacement, if this happens) would indeed be the proper place to raise the issue of partner consent. Since UK law currently requires fertility clinics to offer counselling to donors, although does not mandate it, they are best placed to address the interests of the donor's partner and other existing or future children.
Requiring partners of both genders (married, de facto, and/or
same-sex) to attend counselling and to give consent, however, would help the
potential donor consider the possible impact on all members of his or her
family. This could allow some donors to acknowledge that what is being created
through donation is not merely a vial of transferable tissue, but a complex web
of biological and social relationships.
Furthermore, such requirements would help safeguard the best interests of the intended child, who would certainly benefit from the assurance that they are no one's little secret, and that - should they choose to seek contact with their donor - they would not only be expected, but possibly welcomed by the donor's partner and other children as well.