Ubaka Ogbogu is assistant professor, Faculties of Law and Pharmacy & Pharmaceutical Sciences, University of Alberta and Katz research fellow in health law and science policy, Health Law Institute, University of Alberta
Should a fertility treatment clinic implement a policy requiring patients to use only ethnically or racially matched gamete donors? If the idea of such a policy already triggers some element of moral revulsion, you need not read further. But for argument's sake, here's why a controversial policy that was in effect until last year at Calgary's only fertility clinic, and which requires patients to use racially matched sperm donors, is morally, ethically, and legally objectionable.
The policy suggests that a child is disadvantaged by not having an ethnically matched parent. This is a dangerous idea that stigmatizes children who are part of ethnically mixed families. Besides, there is not a shred of evidence that suggests the welfare of a child born (with or without donor gametes) to a person of different ethnicity or race is diminished by the mere fact of that difference.
Individuals who do not have fertility issues are free to seek out partners of any race, colour, ethnicity or creed for procreation purposes. Why then should those seeking fertility treatment be limited to ethnically matched donors? Such limitation stifles patient choice and makes a mess of the ethical and legal concept of autonomy, which is fundamental to medical decision-making in our society. Indeed, it violates professional practice guidelines issued by the International Federation of Gynecology and Obstetrics, which stipulate that patients should "be provided with the opportunity to consider and evaluate treatment options in the context of their own life circumstances and culture." Simply put, decisions regarding a future child's ethnicity should be made by parents, not by doctors.
The clinic's administrative director, Dr. Calvin Greene, has reportedly stated that the policy aims to promote cultural connections between parents and offspring. This is an absurd claim to the extent that it suggests parenting is strictly about passing on one's culture. Also, culture is not static or immutable – it is shaped by, and changes, with lived experiences. I was born in Nigeria, but have spent the majority of my adult life in Canada. Am I culturally Nigerian or Canadian? Or perhaps, like most Canadians, I consider myself a multicultural person. If I am right about this, then the policy does not reflect Canadian values, and may mask racial biases that are no longer acceptable in Canadian society. The simple truth is that ethnicity and race are not synonymous with culture. In any event, both are socially constructed categories that are not determinative of a child's life outcomes. It is no surprise, therefore, that the Calgary clinic was alone in this – I am not aware of any similar policy anywhere in the developed world.
Dr. Greene has further argued that the policy is similar to provincial adoption guidelines. It is true that Alberta law requires caseworkers handling adoption applications to consider "the benefits to the child of maintaining, wherever possible, the child's familial, cultural, social and religious heritage." However, this is one of several factors to be considered and, unlike the donor matching policy, adoption policies do not require a rigid adherence to ethnicity or cultural background, especially in situations where there is no clear or established benefit to a specific child.
If one takes the view that the doctor's position is a moral or conscientious objection to mixed families (which I think it is), then the policy was always wrong because as the only fertility clinic in Calgary, it created undue hardship for persons seeking treatment who would have to go elsewhere. The policy was also discriminatory, as it significantly and unfairly reduced the donor pool available to individuals, particularly visible minorities, on racial grounds. Interestingly, the clinic has reportedly stated that the policy was upheld by the Alberta Human Rights Commission in a case involving a "white couple" with no fertility problems. There is no reported decision regarding such a case, and the Commission does not have any authority to "uphold policies." Its role is to determine if discrimination has occurred in accordance with applicable legislation.
The choice of gamete donors belongs to aspiring parents. A fertility clinic's role is to provide information and counselling regarding treatment options, such as information about genetic inheritance and age of the donor. Going beyond this role to engage in designing the cultural fate of the unborn is morally and ethically repugnant, and deserves our collective condemnation.