Legal Law

Your New Fertility Vocabulary For 2022 – Above the Law

Happy New Year 2022It’s almost a new year, and it’s time for a fresh start. Out with the old and in with the new. It’s time to move on from expired food, outdated fashion, and, hopefully, eventually, the never-ending pandemic. It’s also time to reconsider some of the language we use to talk about assisted reproductive technology and the evolving ways in which many families are formed.

“Test tube baby” was once an offensive term for a person conceived through in vitro fertilization (IVF). And while some still dislike it, others have reclaimed it — including America’s first test tube baby, born 40 years ago yesterday. Happy birthday, Elizabeth Carr!

What other language surrounding IVF deserves reconsideration?

“Anonymous.” Raise your hand if you received a home DNA test kit over the holidays, or have already taken one. A study reported back in 2018 that most Americans of European descent were identifiable from their DNA. The authors estimated that in two or three years (so, like, now) 90% of Americans of European descent will be identifiable from their DNA. And you don’t even need to take a DNA test directly for a person genetically related to you to be able to find and identify you. It just takes a few distant cousins taking DNA tests and … bleep beep boop … a genetic offspring can find you.

So while “anonymous” egg, sperm, and embryo donation is still happening — meaning the recipients of the reproductive material do not know the identity of the provider at that time — we all know that most donors of reproductive material can, with high probability, be found later.

So goodbye to the word anonymous when used with the donation of reproductive material. And while we may move to alternative language like “non-identified” (the American Society for Reproductive Medicine’s latest term), “unknown,” or “closed,” hopefully we will continue to move away from the concept altogether. Evidence continues to support more open forms of donation arrangements, especially for the sake of the donor-conceived offspring.

Speaking of which …

“Donor-Conceived Child.” While this term has long been used to describe a person whose conception resulted from the assistance of donor egg, donor sperm, or a donor embryo, many donor-conceived persons are not fans of the use of the word “child.” That’s because a “child,” legally, in many jurisdictions, means someone who is currently under 18 years of age, and more generally is frequently used to describe even younger children like toddlers and babies

Of course, time passes, and many of the children conceived with the help of donor DNA age past 18. And while adults are still children of their parents, the repeated use of the term “child” for an adult can be grating. Hence, a conscious effort to move to “donor-conceived person” and ditching the “child” part doesn’t seem like too much of an ask.

“Reproductive Negligence.” By contrast to the terms that people are or should be retiring, this a term that will likely continue to grow in usage in the coming years. Coined by University of San Diego School of Law Professor Dov Fox in a journal article by the same name, and then more thoroughly in the book, “Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law,” Fox argues that while court have historically struggled with claims of wrongdoing in the fertility arena, they can and should do better when it comes to righting such wrongs. Fox divides the universe of reproductive negligence into three categories: errors that 1) deprive pregnancy or parenthood of people who set out to pursue them, 2) impose pregnancy or parenthood on those who tried to avoid these role; and 3) confound efforts to have a child with or without certain genetic traits.

Thanks to the popularity of home DNA kits (see vocabulary word #1), that third category of errors have been coming to light like water from a fire hose. DNA testing has been revealing serious sperm and embryo mix-up cases, clearly deserving of some form of justice for the victims.

So here’s to 2022! Raise a glass to the beloved babies and growing families the year is sure to bring, as well as new and improved legal outcomes for those who have experienced reproductive injustices.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at

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