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Life Before Conception: Gamete Personhood in the Wake of Dobbs

Life Before Conception: Gamete Personhood in the Wake of Dobbs

In a shocking 2023 Oklahoma District Court ruling, lesbian mother Kris Williams lost custody of her son, Warren, to sperm donor Harlan Vaughn.[1] Williams, an active co-parent, was listed as a parent on Warren’s birth certificate and was married to his birth mother, Rebekah Wilson. Vaughn had contractually relinquished paternity upon Warren’s conception. Nonetheless, after Williams and Wilson divorced, a judge ruled that Williams “could not establish a mother-child relationship.” He cited Oklahoma’s 2006 Uniform Parentage Act, which required her to either birth or adopt a child to be considered a parent.[2]

In 2020, in a seemingly disconnected domain, New York State proposed legislation requiring fertility providers to verify detailed “medical, educational, and criminal felony conviction history information” of all gamete (sperm or egg) donors.[3] Also known as “Steven’s Law,” the legislation was spearheaded by Laura and David Gunner, whose son, Steven, died of an opioid overdose after battling schizophrenia. When Laura Gunner was inseminated, she was unaware of her sperm donor’s full medical and legal history.[4] With this information, the Gunners believe they might have avoided Steven’s death–and, by implication, his life–because they might have chosen a different donor.[5]

These stories are linked by an ideology that I call “Gamete Personhood,” which has gained traction in recent years. As is clear in the Gunner case, the concept of Gamete Personhood attributes an increasing number of personal characteristics—from one’s proclivity toward crime, to one’s political leanings, to one’s sexual desires—to sperm and eggs themselves. It also posits kinship as inherent to gametes, as we see in the Williams/Wilson custody case. In all cases, the gamete is invoked as a site of possible state intervention into the life of the child, not at but before conception.

While those espousing Gamete Personhood have largely been right-wing, bipartisan support for its tenets is increasing, with diverse actors uniting under the slippery banner of children’s rights. Recently, this network has been responsible for shepherding in new fertility regulations in Colorado, New York, California, and New Mexico, as well as custody rulings in Pennsylvania, Idaho, and New Mexico. This advocacy has been influential in redefining both identity and family as rooted in genetics, a shift that also accords with the rise of the “hereditarian left.” It’s worth unpacking here how Gamete Personhood has helped shape, and even accelerate, the concepts of “fetal personhood” that have been so formative in efforts to dismantle Roe.

Before proceeding, however, we must debunk pseudo-scientific one-to-one correlations between an individual’s DNA and their personality traits. According to medical historian Nathaniel Comfort, these misconceptions attest to an “ever-widening gap between science’s understanding of genetics and the public’s understanding of science.”[6] This is because the genome is “an extremely dynamic entity, constantly changing its properties in … response to its environment.” Contextual factors such as stress or pollution impact which genes are expressed. This, in turn, influences how the genetic information stored in one’s DNA translates into observable traits–or if it even does. Furthermore, there are myriad political-economic forces and cultural ideologies informing knowledge of DNA itself. This context shapes everything from the data used to map the genome, to the science of heredity, making it impossible to draw a straight line between genes, traits, and genealogy.

Yet DNA holds a mesmerizing cultural power, especially as companies like Ancestry or 23andMe promise to deliver hard-and-fast truths about oneself through “DNA test kits.” According to sociologist Alondra Nelson, DNA under neoliberalism has emerged as “an agent in the politics of repair and reconciliation [that is] sought after as a communal balm… social glue… a burden of proof and a bridge across time.”[7] Dominant social media conversations asserting that two biological parents are necessary for a child’s self-knowledge, wholeness, and well-being double down on these cultural ideas of DNA as salvific.

Despite these complexities, Gamete Personhood is gaining traction. Gamete Personhood enthusiasts who converge at conferences cross the political aisle. Here, unlikely political allies work to shape discourse and craft legislation. This includes Colorado’s bipartisan-backed Senate Bill 224, which bans anonymous gamete donation and requires intending parents to read materials written by the DC individuals who championed the legislation. Another example is proposed Michigan bipartisan legislation that would “provide legal recourse to [donor conceived]… children,” empowering the state to investigate information provided by donors to banks.[8] This rare consensus among politically divergent players further normalizes Gamete Personhood’s assumptions across the political spectrum.

On the far right side of the spectrum lies Jennifer Lahl, Director of the Heritage Foundation-supported Center for Bioethics and Culture (CBC). The CBC opposes all Advanced Reproductive Technologies (ARTs), decrying surrogacy, sperm donation, and gender-affirming care. Like other fundamentalist Christian sects, it believes that IVF is incompatible with a “pro-life” position because IVF entails the loss of embryos.[9] Additionally, the CBC promotes pseudo-scientific studies arguing that children conceived outside married hetero-reproduction exhibit poor psychological and health outcomes.[10]

Another organization on the far right, Katy Faust’s Them Before Us (TBU), operates under the aegis of “children’s rights.” It cites the “right to a father and a mother” and argues that LGBTQ+ parents, donor conception, divorce, and non-biological parents are harmful to children.[11] Positing that life begins at conception, TBU critiques Tennessee’s “Human Life Protection Act,” which criminalizes abortion as a felony but falls short of including “embryonic human beings.”[12] This aligns with the hard-right Personhood Movement that confers personhood to fetuses, embryos, and single-celled zygotes. The movement denounces many forms of birth control and all abortion, even after rape or incest. Figurehead Daniel Becker asserts that “each individual human life has an ‘unalienable’ right to life from its earliest biological origins.”[13] This begs the question: When will advocates for preborn personhood next interpret these “earliest biological origins”to begin?

But Gamete Personhood is not limited to neoconservatives; members of the progressive left also humanize gametes to invoke the “personhood” of prenatal life. A cottage industry of entrepreneurs, DNA “detectives,” and academics utilize social justice rhetoric to re-assert the primacy of gametes in pre-determining identity and personhood. Their interpretation fuels arguments that the “severance” of children from their genetic ancestors through donor conception is a form of forced family separation, similar to adoption, political kidnapping, and the removal of Indigenous children from their communities through residential boarding schools and the child “welfare” system. Organizations like The Right To Know and We Are Donor Conceived use feminist and antiracist rhetoric to define donor conceived, or “DC” people as an oppressed group whose perspective must be prioritized and drive the conversation. They use first-person narratives that call out “oppressors” (in this case, recipient parents) on behalf of the oppressed (DC children). However, they are also not-infrequent collaborators with right-wing “family values” organizations such as the Institute for American Values.

A good example of the mobility of Genetic Personhood discourse can be found with viral TikTok personality Laura High, a DC advocate for fertility legislation. A self-avowed progressive, High posts videos under the hashtag #leftisttiktok and uses her channel to promote progressive causes, such as her appearance in a drag show to raise funds for LGBTQ+ communities. Yet she also promotes her message that donor conception is “legal eugenics” and “medical rape” in an interview in The Federalist, right next to immigrant-bashing, transphobic, and antichoice articles.

High is not the only one to superficially offer a welcome to LGBTQ families while uniting with unlikely bedfellows in the quest to safeguard prenatal life, regardless of the consequences. Take, for example, a recent tweet by Tiffany Gardner, USDCC President, in which she draws from the cultural power of fetal imagery mobilized by antiabortionists to argue against anonymous donor contracts.

Twitter graphic that shows an ultrasound baby head, and has the words "Donor conceived people are not even conceived when their intended parents, the donor, and the bank sign agreements regarding ‘anonymity.’ Donor conceived people are not bound by those contracts" superimposed on it
“Donor conceived people are not even conceived when their intended parents, the donor, and the bank sign agreements regarding ‘anonymity.’ Donor conceived people are not bound by those contracts.” (Tiffany Gardner, (@tiffgard)/Twitter, June 16, 2023, 10:01 AM)

Sliding seamlessly between the gamete, the fetus, the child, and the DC adult, Gardner in the tweet argues that “a donor-conceived person does not sign donor-anonymity contracts in utero.” This conflates the fetus-zygote-embryo with individuated, rights-bearing subjects. Gardner’s discourse also correlates ideologically with the rise of “trigger laws” classifying abortion as felony murder, such as in proposed Louisiana legislation by constructing prenatal life as imperiled by reckless mothers and clinicians. This message abets in further stretching the category of “prenatal life,” raising fears among clinicians who fear legal sanctions for the routine management of embryos.

It is here that Gamete Personhood’s neoliberal and neoconservative adherents converge—and depart—in their quest to “protect” what some refer to as “preborn life.” While DC activists do not directly argue for the “aliveness” of gametes, they do invoke ideas of the genetic soul that locate the essence of personhood before birth. This makes it possible for the state to intervene in the life of a potential child—to (ostensibly) protect that child, from its parents, from disability, from genetic severance—prenatally. If fetal personhood makes the fetus subject to state regulation and protection, Gamete Personhood makes it possible for the state to intervene on a person’s behalf at the gamete stage.

Gamete Personhood, and its targeting of the pre-reproductive body, raises many questions for progressive movements for racial, gender, disability, and reproductive justice. While I cannot elaborate here, it is worth mentioning areas that warrant careful discussion. First, these trends ought to sound the alarm bell for disability justice movements wary of the eugenic underpinnings of “screening” for disabilities in order to restrict who can reproduce and be born. They also raise important questions surrounding the retrenchment of means for building LGBTQ families, stoking fears among clinicians who fear legal sanctions for the routine management of embryos. Furthermore, progressives must scrutinize any legislation that links genetics to criminality, especially without a detailed discussion of the ways that racialized identities themselves are criminalized.

Thus, Gamete Personhood raises many questions for the Left, especially in the wake of Dobbs. To be clear: children deserve transparency about their conception and must define the importance of genetics for themselves. However this is not the same thing as legally sanctioning familial relations along lines of DNA and biology. The dismantling of Roe serves as a proxy for attacking poor, LGBTQ+ and BIPOC women and communities. Gamete Personhood fundamentally exacerbates similar hierarchies of power.

Notes

  1. Vaugn V. Williams, FP-22-44 (7th Judicial District, Oklahoma 2023).
  2. Kay Kaitor, “Court Rules in Favor of Sperm Donor in Oklahoma Child Custody Case,Oklahoma News 4, February 15, 2023.
  3. Naomi Cahn and Sonia Suter, “Generations Later, the Rights of Donor-Conceived People are Becoming Law,The Hill, February 23, 2022.
  4. Amy Dockster Marcus, “A Grieving Family Wonders: What If They Had Known the Medical History of Sperm Donor 1558?,” The Wall Street Journal, January 2, 2022.
  5. Kate Seamons, “They Turned to Sperm Donor 1558. Was it a Mistake?Newster, January 4, 2022.
  6. Nathaniel Comfort, “The Genetic Self,” The Point Magazine, November 19, 2014.
  7. Alondra Nelson, The Social Life of DNA: Race, Reparations, and Reconciliation after the Genome (Boston: Beacon Press, 2016), 27.
  8. John Roth, “New Bipartisan Measures Provide New Safeguards for Fraudulent Fertility Information,” February 1, 2022, https://gophouse.org/posts/new-bipartisan-measures-provide-new-safeguards-for-fraudulent-fertility-information
  9. Wesley Smith, “Interview with Jennifer Lahl,First Things Blog, April 20, 2012.
  10. CBC, “Three Things You Should Know About Sperm ‘Donation’.”
  11. Marjorie Jackson, “Katy Faust: Kids Have a Right to a Father and a Mother,” The Washington Stand, August 4, 2022.
  12. Katie Breckenridge, “IVF & Abortion Trigger Bans: The Reality That Not All Prenatal Life Is Protected,” Them Before Us, December 14, 2022.
  13. Daniel Becker, cited in Risa Cromer, “Racial Politics of Frozen Embryo Personhood in the US Antiabortion Movement,” Transforming Anthropology, 27 (2019): 22-36, 22.

Tamara Lea Spira is Associate Professor of Queer Studies and American Studies in the Fairhaven College of Interdisciplinary Studies at Western Washington University, and a former UC President’s Postdoctoral Fellow in Cultural Studies. Her first book, Movements of Feeling: Feminist Radical Imaginations in Neoliberal Times, is forthcoming from University of Washington Press. She recently served as a Beyond Health Fellow at UC Davis’s Feminist Research Institute, where she conducted research for her second book, The Perils and Promises of Queering Family: Reproductive Justice in Homonormative Times (forthcoming from the University of California Press).

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