Until now, Costa Rica had been one of  only 43 countries where in vitro fertilization was illegal.

See Costa Rica Seeks In Vitro Compromise.

As there is little regulation of this industry and standards vary wildly reproductive tourism has been the result, with infertile couples researching and then crossing borders to buy what services and raw genetic materials they seek.

This has in turn, produced a global marketplace wherein human eggs have become a much valued comodity (as they are far more complicated to obtain than sperm) but even the quest for “top quality” sperm or certain genetic characteristics has led to shopping for desired donors.

Naturally, the usual set of pressures tend to drive the donations, “Hens” or women willing to donate eggs are lured in with advertisements promising money for their eggs, be that a rise in American domestic egg donations in times of recession, or flying off to India to buy eggs or even the services of a surrogate on the cheap.

The implications for women in poverty and their rights has been staggering.

Sitting where I do, as a reproductive autonomy advocate AND a Bastard, all of this is where the going gets weird.

The Costa Rican ban was essentially, at the behest of the catholic church. The infertile couples seeking to legalize IVF have been represented by the Center for Reproductive Rights.

While at first glance one might think it’s very cut and dry where I should stand on all this, unfortunately, it’s far more nuanced, because I also stand with IVF and donor conceived individuals and work for their rights (as they are not altogether dissimilar to the global fight for adoptees’ rights. We have many areas of overlap.)

At times the rights of the people resultant from assisted reproductive technologies can come into conflict with infertile couples themselves and their quests for children, (both in the adoption realm and the in the assisted reproductive realm.)

The bottom line for me is that I support the absolute right to authentic, reality based/biologically based identity/personal history for all people.

No one should be stripped of their identity or their origins.

While donor conception does not intrinsically HAVE to violate that right, the way it is commonly practiced here in the U.S.  often does. Globally, identity is often the first casualty of the process.

Donor conceived individuals often face constructed roadblocks to accessing their authentic identities, such as being legally barred from learning the identity of their donor or donors, or when sperm samples are mixed prior to artificial insemination as a means by which to intentionally obscure and obstruct donor identification.

Anonymous donation circumvents those rights and the sale and substitution of reproductive material disconnecting the raw material from any identification with an individual has further muddied the waters, so to speak.

The combination of cash and genetic material has made far too many abuses possible. But even in countries such as Canada where it is illegal to tangle payments in for gamete donors, the identity rights of offspring have still been struggling their way through the courts.

Pioneers like Olivia Pratten are trying to build the body of law it will take to enshrine identity rights.

Here in the U.S. at least, you have the further complicating factor even for couples who utilize their own genetic material of “leftovers” from the process and what to do with them?

Decisions must be made or processes created pertaining to long term storage, the legalities of destruction, donation for medical research, or donation to other couples. Unless of course one happens to live in Louisiana, which offers the Louisiana conundrum that both bans destruction and donation for research purposes AND prohibits thawing unless the embryo is to be implanted in a woman’s uterus with the potential for it to grow to term.

This forces couples to either implant every embryo created into the woman for whom they were created or, pay long term storage fees in hopes that eventually the embryos become no longer viable (but as we just saw, we have at least one case where an embryo was still viable after 19 years),  or donate their embryos to other couples, (as to whether they want to or not, simple economics may force that decision.)

The catholic church may oppose IVF, but this Louisiana granting of a legal status equivalent to personhood on potentially viable embryos is merely another side of the theologically based coin. Once constructed, the catholic church wants to ensure they are brought to term, not for example, utilized in stem cell research.

To say we’ve already wandered into a quagmire would be an understatement, and this barely scratches the surface.

My guiding beacon through this ultimately comes out to what I believe to be the human rights of the people who are the result of this process. They have a right to their truth, to their identity and to their origins, no matter what those might be.

No state, no law, nor even any international convention nor treaty should be able to override that which other people simply take as their birthright.

Yet sadly, even the few places in international agreements that have tried to tackle these issues have ultimately been corrupted by an ongoing valuing of adoption itself over the human rights of adoptees themselves.

The people who are the end result of these reproductive processes and a result of the adoption process are those who are ultimately treated as exceptions when it comes to human rights. Special procedures are in place for us. We live under special rules, separate from the rest of humanity, we are the exceptions.

There are two classifications of people, those who potentially at least, stand to enjoy the full protection of international human rights agreements, and those of us who endure the second class status of living somewhere in the clauses and special conditions placed on those rights.

Take for example, the UN Convention on the Rights of the Child (to which the U.S. is still not a signatory)

Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents.

That fatal flaw, the “as far as possible” was a deliberate acquiescence to the adoption process as you can read the history about in commentaries on the process that led to the provisions in the convention such as this.

Article 8 contains a similar flaw (emphasis added):

1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

Which is to say, so long as that interference in our identities is “legal”, our rights are still not protected.

Article 9 continues in the same vein (emphasis added):

1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.

This again, provides an override. When the state can “legally” determine a child’s so called “best interests” are best served by severing ties, our rights to identity become expendable.

(Thus if a country, such as Australia, makes it “legally” permissable to outright steal children for purposes of adoption, the adoptees’ human right to indentity is rendered null and void.)

While articles such as Article 11 might at first appear to protect kids from inter-country adoption, again, so long as the transfer is not deemed “illicit” but rather legal, our rights to identity mean nothing.

1. States Parties shall take measures to combat the illicit transfer and non-return of children abroad.

Obviously,  the Convention goes on, but these few examples make my point.

Rather than ultimately protecting our right to identity, even in core human rights documents such as this, adoption trumps our rights.

Is it really so much to ask for a single standard? A one size fits all version of human rights?

Is identity only a human right to be enjoyed by those fortunate enough not to have been subjected to an override by the state?

Apparently it is, as to do otherwise would be to stand to threaten that most sacred of sacred cows, adoption itself.

These exceptions place all right to identity at risk, as at any time, once made legal, any given state can utilize those overrides on any child, any set of parents.

The infertile, on the other hand are granted at least certain protections.

IVF and donor conception have been interpreted as being covered for the infertile couple by the UN Declaration of Human Rights, Article 16.1 (emphasis added)

“Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family“

This is interpreted to be a core reproductive right.

Note however, that that ‘founding a family’ does not inherently entitle people to the children of OTHER parents, (despite what Australia asserted.)

Ironically, Article 25 while certainly not a reality in American society, nor even in the UN’s own Convention on the Rights of Child does at least pay lip service to adoptee equality (emphasis added):

• (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
• (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Again, merely taking this as a statement of what human rights ideally would be, Bastard equality got at least a mention.

But as to how the actual rights of Bastards, traditional adoptees, and people resultant of reproductive technologies plays out in the here and now? It’s a mess.

A mess that only gets messier the more states reduce an ownership model of personal genetic material and produced embryos and instead increase the state’s ownership over such treating such as more a pooled national resource. Once produced, embryos though coercion, economic necessity, and other mechanisms can be confiscated and redistributed, rather than given at will via donation by the couple in question.

That is ultimately what lurks behind laws such as Louisiana’s, and more broadly, the christian eugenic movements’ (propagandisticly termed) “embroyo adoption” schemes.

So in the midst of all this, what’s a radical feminist Bastard to do in relation to the Costa Rican situation?

Well, for starters, admonish Costa Rica to listen carefully to self described “artificially created bundles of joy” see, Confessions of a Cryokid (and explore her links for the voices of many others.)

There is a window in time here where unlike other countries whose programs have evolved in relation to the market, Costa Rica has an opportunity to learn from the mistakes of other countries and put in at minimum a few protections up front.

To list but a few potential considerations, (not saying I agree with nor want all of these, some are merely offered as “what ifs”):

• Costa Rica could write the absolute, inalienable right to one’s own genetic identity into law.
  
• It could make it illegal to in any way tamper with or obfuscate the identities of those who provide the raw genetic materials that go into bringing this new person, who is deserving of their own identity rights, into being.
• It could make buying or selling these genetic materials illegal.
• It could mandate a process whereby IVF and donor conceived individuals’ perspectives about some of what will likely be the realities of their lives become core to required counseling for couples considering the process. Those who want a donor conceived child, for example could have to listen to what it’s like for other donor conceived people to grapple with realities such as having potentially hundreds of half siblings.
• It could require step by step authentications of identity throughout the process.
• It could require open and fully accessible registries of donors and half siblings be made available to the resultant individuals.
  
• It could ensure that personhood status is reserved for people. (I know, I know, I can’t believe I have to state things that feel this obvious sometimes, but when it comes to the catholic church, what should be obvious, is more likely to become long drawn out court battles over decades.)
• It could set criminal penalities for implantation in a woman other than the intended recipient.
• It could ensure the legality of embryo disposal and build in a consent process.
• It could explicitly state that embryos produced as a result of this process disposition are solely in the hands of the couple who had them created in the process of their effort to “found a family.”
• (or) It could create a means by which to deal with “abandoned” embryos, as avoidance of what to do with leftovers and indecision sometimes occurs.
• It could explicitly ensure that “leftovers” can be donated for scientific research purposes.
• It could make it illegal to utilize the “leftovers” in a religio-political staged “funeral” event, or illegal to bury such in cemeteries.
• It could make it illegal to utilize the “leftovers” in political quasi-religious rituals.
  
• It could create a process by which custody is determined or destruction mandated in the event of divorce.
• It could make it illegal to release “leftovers” to individuals.
• It could require disposal in warm liquid solutions where they essentially disintigrate or that they be disposed of and regulated like bio-waste product.
  
• It could ensure that no embryo could be implanted in another woman without explicit consent of the couple who had them created in the process of their effort to “found a family.”
• It could require a two year cooling off period and counseling between an infertility diagnosis and beginning IVF.
• It could ensure that “concurrent” efforts such as simultaneous adoption efforts with IVF treatments are instead made chronologically sequential or separated.
  
• It could require that every donor commit to a half hour visit at some point in their lifetimes with each child who results from the process.

Again, all of these barely scratch the surface of what lies ahead if Costa Rica DOESN’T get this explicitly nailed down, asap.

How do I know?

It’s quite simple, really. All of these “issues” are the stories that constitute the day to day headlines I deal with everyday.

More to the point, these barely scratch the surface of the “issues” that IVF and donor conceived people deal with every day of their lives for a lifetime.

If this industry is going to start up in Costa Rica, the voices and experiences of these people should be at the core of that process, not the unregulated for profit industry that churns these people out as product.