Lessons From Adoption
Adoption has always been a child-centered and highly regulated area of family building, with agencies or facilitators charged with the multiple responsibilities of serving the interests of the child, birth parent and adoptive parent. While I concede that there are significant differences between gametes and embryos donated to create a child conceived through ART treatments and born children resulting from unintended and unwanted pregnancies, there are also startling similarities and lessons to be learned.
For decades, as with sperm donation, the adoption norm was secrecy : adoptions were closed procedures. The prevailing wisdom was that birth parents should not see, and therefore would not think about, their children; adoptive families should not tell, and thus would not remember, that their children were not their biological offspring. Babies were taken from hospitals without good-byes, placements were made only after home studies and criminal record checks confirmed parental fitness of adoptive families, and court records creating those families were sealed from all involved and for all time. Medical information was sometimes scanty or non-existent. And no thought was given to placing biological siblings together.
That model has slowly disintegrated over time, as the concept of openness in the adoption process has evolved. At this point, the majority of domestic adoptions in the United States are at least partially open, with birth parents significantly involved in selecting, if not meeting or continuing a relationship with, their chosen adoptive family. A growing movement to open adoption records has resulted in mutual registries in almost half of the states wherein adult adoptees and birth parents can link up with one another, and court orders are increasingly sought and obtained by adoptees seeking identifying birth information. Legislative efforts to establish a federal adoption registry are ongoing. A recently enacted (1999) law in the state of Oregon allows adoptees to obtain their original birth certificates directly from the birth register without the need for either a mutual registry or a court order.
Despite wide variation in current state adoption laws, certain central principles are common : buying and selling babies is strictly prohibited (although birth parent expenses are frequently permitted); consents to adoption may not be given before birth (with a few exceptions); home studies and criminal record checks of potential adopters are commonplace; registries or agency policies for exchange of both identifying and non-identifying information are in place; legally recognized birth fathers must consent or have their rights terminated; consideration must be given to placement of genetic siblings together; and any promises to place a baby for adoption prior to birth or for financial consideration are illegal or unenforcable.
While there are clear differences between gamete or embryo donors and birth parents, as has been repeatedly explored in the mental health literature, the historical trends in adoption sketched out above present relevant analogies and lessons for ART law and policy makers. Taken together with international developments in the area of donor registries, which are beyond the scope of the essay, I suggest that future ART policies and regulation in the USA need not necessarily or beneficially follow the historical, medical model of secrecy-based, anonymous donor insemination.
Instead, the future of the ARTs could benefit from a more open, inclusive model — one that recognizes the legitimate concerns of donors and acknowledges the primacy of the needs and interests not of the adult patients but of the recipient children.
CONCLUSION
The Future of Third-Party Reproduction : Where to from Here ?
The existing model of reproductive medicine, where patients with their physicians make private and unfettered decisions about their family building efforts, is beginning to show the strains of modern times. Compared with medical infertility treatment decisions involving biological parents, the legal tensions reflect in recent court battles illustrate that adding anonymous or known gamete or embryo donation to effort to enable patients to have a child raises fundamentally different questions and societally broader concerns. As physicians, brokers and patients themselves move into the realm of recruiting, screening and compensating donors and offering or even creating embryos for donation or adoption, major new societal, ethical and legal questions are being raised.
One very recent example is the imbalance between supply and demand for donor eggs, which will almost certainly lead to renewed concerns about commercialization of gamete donation, coercion of donors and the adequacy of existing voluntary guidelines. Current professional guidelines for egg donor payments do not set a dollar cap, but suggest only that payments should be for the time and effort involved in creating the eggs and not be ‘so excessive as to constitute coercion or exploitation. A 1995 report of that organization’s Ovum Donor Task Force,which was composed of mental health professionals, recommended compensation in the range of $1000-3000, suggesting that, ‘compensation above $3000 may be construed as coercive.’
Ironically, one of the tall, smart college students who initially considered answering the $50000 donor ad said she first had ‘big, ethical discussions’ with her friends and ultimately chose not to pursue donation, likening it to prostitution. It would be prudent if such discussions were happening at the level of national policy, and not just on undergraduate campuses.
It remains to be seen if providers or separate entities now moving eagerly into embryo donation will attempt to pay donor for their embryos, even though they were originally created for their own use. Such payments would be difficult to justify and are not recommended under current professional guidelines. Embryo donation also presents a clear need to legally define how parenthood is relinquished and obtained and what duties, if any, are owed to embryo donor with respect to their embryos and the children created from them. Courts called upon to settle individual disputes look to precedent, and, in the absence of specific laws to guide them, may well look to adoption analogies rather than donor insemination laws.
While the debate within the medical profession as to the need for, and scope of, outside regulation will probably continue for some time (for example, see references 17 and 18), there appears to be a growing interdisciplinary consensus’ that some outside policies and regulation are both justified and necessary. Few federal laws are currently in place governing the ARTs (the Wyden Act addresses statistical reporting requirements by ART programs). The lessons of Florida and its attempt at legislation should be instructive to others.
Significant efforts are underway by a large variety of policy groups to revisit existing laws and to develop additional legislation aimed at protecting families being created through ART treatment. Included amongst such groups are the American Bar Association which is drafting a model law addressing numerous issues of the ARTs; the National Conference of Commissioners of Uniform State Laws (NCCUSL) which is updating its Uniform Parentage Act; and the New York State Task Force on Life and the Law, which issued a comprehensive report and suggestions for specific legislation in The Assisted Reproductive Technologies : Analysis and Recommendations for Public Policy in 1998. Efforts at proposed policy and legislative consensus have identified numerous legal trouble spots in the ARTs, including clarification of both maternity and paternity for children born from donor gametes embryos, and surrogates; embryo status including clarification of disposition options, inheritance and posthumous reproduction; the establishment, content and accessibility of a donor registry; standardized informed consent requirement; restrictions on multiple gestations; the scope of insurance coverage; and the appropriate standard of care owed to and by all involved in creating these brave new families. A number of these groups are beginning to collaborate as they attempt to reach policy consensus on some of these issues.
As the ARts continue to develop, particularly in their use of donor, the law needs to at least address and define the rights and responsibilities of all involved. The incentive is great to avoid large-scale transgressions (as occurred recently at the University of California in Irvine) or contested custody disputes over children without established parentage. Legal cases such as Lucas, Buzzanca, and Huddleston are serving as wake-up calls for courts, legislatures and policy makers alike.
ADOPTION
Adoption and medically assisted reproduction are alternative options for childless parents to fulfill their wish for having a child. In both situations, there is a necessity for the future parents to mourn the loss of their imagined child, which could have been conceived without a third party (adoption agency or medically assisted reproduction). Adoption always represents for the child a loss of emotional ties with birthparents and the development of new attachments with adoptive parents. Adoption can be considered as a lifetime process of the members involved in the adoption triangle, that is birth parents, adoptive parents and the child. The article discusses the loss of emotional bonds from primary caretakers as a psychological trauma and addresses mourning difficulties in adoptees. Problems with the development of new attachments with adoptive parents such as loyalty conflicts and the revelation of the adoption are described. Family romance fantasy in adoption and aspects of family dynamics as well as the specific difficulties adoptive parents encounter are explored.
CONCLUSION
Ethical issues relating to reproduction control and women’s health.
There are many ethical aspects which derive from the application of reproduction control in women’s health. Women’s health can be enhanced if women are given the opportunity to make their own reproduction choices about sex, contraception, abortion and application of reproductive technologies. The main issues that raise ethical dilemmas following the development of assisted reproduction techniques are : the right to procreates or reproduce; the process of in vitro fertilization itself-is it morally acceptable to interfere in the reproduction process; the moral status of the embryo; the involvement of a third party in the reproductive process by genetic material donation; the practice of surrogacy, cryopreservation of pre-embryos; genetic manipulation; experiments on pre-embryos, etc. Induced abortion raises ethical issues related to the rights of the woman versus the rights of the fetus. For those who consider life to begin at conception abortion always equals murder and is therefore forbidden. Those who believe in the absolute autonomy of the woman over her body take the other extreme approach. The discussion surrounding abortion usually centres on whether it should be legal or illegal. Access to safe abortion is critical to the health of women and to their autonomy. The development of new effective contraceptive methods has a profound impact on women’s lives. By the use of contraception it is possible to lessen maternal, infant and child mortality and to reduce the prevalence of sexually transmitted diseases. Research and development of new effective reversible contraceptives for women and men is needed. Dissemination of information about the safety and effectiveness of contraceptive methods is of great importance. Female genital mutilation is still practiced worldwide due to customs and tradition among various ethnic groups. The procedure is considered to be medically detrimental to the physical and mental health of women and girls, and is considered by many as oppression of women. The practice has to be stopped. Recognition of the fetus as a ‘patient’ has a potential effect on women’s right for autonomy; they have no legal obligation to undergo invasive procedures and to risk their health for the sake of their fetuses. The woman carries ethical obligations toward her fetus. This obligation should not be enforced by the law. At present women bear most of the burden of reproductive health. All of them have a right of access to fertility regulation. Governments and society must ensure the women’s equal rights to health care just as men have in the regulation of their fertility.
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