Parties to gamete donation: from bounded selves to relational persons.

Abstract

The task of legally characterising complex interpersonal relationships presents a challenge to lawyers, legislators and academics. In law, relationships between parties are commonly characterised in terms of competing sets of rights. The parties are characterised as adversaries, in conflict, and this conflict is resolved by balancing the competing rights of one against the other. Under this model, rights create metaphorical boundaries between autonomous liberal individuals. Relational theories of rights challenge the dominant liberal model of the individual and their legal relations by exchanging the metaphor of boundaries for a study of real relationships. In this way, rights function to facilitate and structure relationships between parties, rather than to keep parties separated. Under a relational model, the autonomy of each person can only be understood in the context of their relationships. The rights-holder can not be viewed in isolation. In this thesis, I consider the legal relationships between Australian parties to gamete donation. In particular, I argue that the relationships may have been well described by a liberal model of rights in the past, but that the liberal model is no longer adequate to characterise the developing interpersonal relationships between the parties. I demonstrate that relational theories of rights provide a sound theoretical basis for characterising the increasingly relational parties to gamete donation, as they exist now and into the future. In addition to describing technological, social and legal developments in donor conception from the early 1900’s to the present day, I place these developments in the context of a broad social shift from liberal to a post-liberal society. In particular, this social shift is characterised by decreased separation between domains of public and private, and represents a deep psychological shift in our understanding of the individual as increasingly interpersonal and relational. In the context of gamete donation in Australia, this shift is manifested in increasing exchange of information between parties over time. In particular, disclosure of information about donors to donor-conceived offspring has been a significant political and academic focus. My thesis first demonstrates a link between the broad post-liberal social shift and changing concept of the individual to the evolving relationships between parties to gamete donation and, second, advocates for the current trajectory of change towards increasingly relational parties to gamete donation.