International law

The implications of international law on donor conception

Donor conception is regulated by the national states themselves and is not subject to international law, probably because it touches on basic values of family law. However, there are several areas of international law that are relevant for donor conception in a European and international context. These are mainly the law of the European Union, the European Convention on Human Rights and the UN Convention of the Rights of the Child.

It has to be kept in mind that international law governs only the law between states, or between persons and states. Therefore, it doesn’t govern the rights, if any, that a donor conceived person might have against a donor conception clinic or sperm bank, or against members of the family in which they have been brought up. These rights are governed by the law of the respective state. If a state, however, enters into international treaties, they bind themselves to respect the obligations set out in the treaty. In the case of human rights treaties, this means that also their national laws have to comply with the rights set out in the treaty. Accordingly, the criticism that a certain practice as particular forms of donor conception violates an international treaty can be a powerful argument. Therefore, it is helpful to examine the implications of international law on donor conception.

Is the European Union competent for regulating donor conception?

The European Union is not competent for a regulation of this area of law. Family law, and therefore donor conception and questions as to who is parent to a child, lie within the competence of the Member States who regulate donor conception in very different ways. For these reasons, the Charter of Fundamental Rights of the European Union is not applicable, as Article 51 para 1 provides that the Charter only applies to the Member States when they are implementing EU law. This means that individuals will not be able to take a member state to court for failing to uphold the rights in the Charter unless the member state in question was implementing EU law.

Is there any EU legislation that affects donor conception?

The European Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells (the „Directive“) has several implication for donor conception, as reproductive cells (eggs and sperm) fall under the definition of tissues and cells (recital 7).

The main objective of the Directive is to ensure the quality and safety of human tissues and cells. It obliges the EU-Member States to ensure that all tissues and cells procured, processed, stored or distributed on their territory can be traced from the donor to the recipient and vice versa (Art. 8 para 1). The Directive, however, does not say who is entitled to information about such data. Therefore, anonymous donations are still possible within the Directive.

Data required for full trace- ability must be kept for a minimum of 30 years after clinical use (Art. 8 para 4). In Germany, where anonymous sperm donations are not allowed due to constitutional law, many doctors claim to have destroyed data after a minimal retention period of ten years. The Directive with its explicit retention period has led to a situation where donor offspring can claim access to donor information within these 30 years. Each European country can implement its own limit. For example, since 1994, data about donors in France has to be kept for a minimum of 40 years.

The Directive requires Member states to install a reporting system to investigate and to exchange information about serious adverse events and reactions resulting from the use of tissues and cells (Article 11 para 1). They must also ensure that establishments which use tissues and cells have an accurate, rapid and verifiable procedure in place which will enable the recall of any product which may be related to an adverse event or reaction. This influences the practice of donor conception as there have been cases where the sperm bank had information that one if its donors probably had a genetic disease, but did not notify the recipient clinics abroad for several months, which led to the use of this donor’s sperm for several inseminations.

The Directive also obliges the Member States to ensure that donations are voluntary and unpaid (Article 12 para 1). It is very likely that some states like the Czech Republic and Spain which have become the main destination of European fertility tourism violate this obligation.

Is the right to know your genetic ancestry protected by the European Convention on Human Rights?

The right to know your genetic ancestry is protected by the European Convention on Human Rights (“Convention”), an international treaty, as part of the respect for private life in Article 8.

Article 8 of the Convention provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others.

The European Court of Human Rights (“ECHR”) has interpreted the respect for private life in Article 8 of the Convention to incorporate the concept of personal identity, and, as such, also the vital interest in obtaining information necessary to discover the truth concerning important aspects of one’s personal identity, such as the identity of one’s parents.1

In the Odièvre case regarding anonymous adoption, the ECHR stated that birth, and in particular the circumstances in which a child is born, forms part of a child’s, and subsequently the adult’s, private life. This is guaranteed by Article 8 of the Convention.2 Therefore, a child has a right to know its origin.3 In cases that touch on the right to identity, as an integral part of the notion of private life, particularly rigorous scrutiny is called for when weighing up competing interests.4

In   the Jäggi case of 20065, the ECHR stated that “the right to know one’s ascendants falls within the scope of the concept of “private life”, which encompasses important aspects of one’s personal identity, such as the identity of one’s parents” and allows the child to take a DNA sample from the body of his deceased’s presumed biological father.

In 2011, in the Pascaud case6, the ECHR stated that the protection of the interests of the presumed father is not a sufficient argument for depriving the applicant of his rights with regard to the article 8 of the Convention.

Are there any ECHR judgments on the rights of donor conceived persons to know their ancestry yet?

There are no ECHR decisions on the rights of donor offspring to know their ancestry yet. This is probably one of the reasons why several European countries still allow for anonymous gamete donations. But where there is no plaintiff, there is also no judge. Therefore, the interpretation of a person’s right to know its origin mainly comes from adoption cases. These cases, however, provide clear evidence that an absolute anonymity of gamete donors violates Article 8 of the Convention.The right to know your ancestry is based on article 8 of the Convention, which is applicable to “everyone”, that means it’s applicable also to donor conceived people. The diversity of the situations in which the ECHR expresses the right to know your ancestry demonstrates its general impact.

There is, however, the court case of Joanna Rose in the UK in 2004 where the British High Court held that Article 8 of the Convention was affected. The decision led to the system in the UK being changed to mandatory open donors in 2005.

In the Odièvre case, the ECHR did not regard anonymous births in France as violation of Article 8 of the Convention. Why should it be different for anonymous sperm donations?

This is true for the Odièvre case of 2003 , but in the Godelli case of 2012 which also regarded anonymous adoptions, the ECHR decided that Article 8 was violated. There are important differences between anonymous gamete donations and anonymous adoptions.

In the Odièvre case, the ECHR decided that the French system of anonymous adoptions did not violate Article 8 of the Convention because

  • the right to respect for life was involved, as France intended to protect the mother’s and child’s health during pregnancy and birth and to avoid abortions, in particular illegal abortions, and children being abandoned;
  • the French government had recently passed new legislation that enabled anonymously adopted people to ask their biological mother via an intermediary institution, the CNAOP, if she agreed on waiving her anonymity;
  • the applicant had already obtained non identifying details about her biological parents enabling her to trace some of her roots.

In the Godelli case, the Court decided that the Italian system did violate Article 8 of the Convention because:

  • the applicant did not have access to any information about her mother and birth family that would allow her to trace some of her roots, while ensuring the protection of third-party interests. The applicant’s request for information about her origins was totally and definitively refused, without any balancing of the competing interests or prospect of a remedy.
  • Italian law did not attempt to find a balance between the competing rights of the applicant to find out her origins and the mother’s interests in remaining anonymous, but blindly preferred the latter.

The practice of anonymous gamete donations is similar to the Godelli case:

  • in most European countries that provide for anonymous gamete donations, amongst them France and Belgium, donor offspring cannot obtain any information about the donor, neither identifying nor non-identifying;
  • In addition, donor offspring cannot ask the donor if he or she is willing to waive his or her anonymity.

Also, there is one major difference to gamete donations. With regard to anonymous adoptions, the ECHR saw the right to respect for life involved. It noted that the respective state was providing the opportunity to give birth anonymously with the intention to protect the mother’s and child’s health during pregnancy and birth, especially to avoid illegal abortions and children being abandoned.

The right to respect for life, however, cannot be evoked for anonymous gamete donations, as neither the child’s life nor the mother’s health is threatened. At the point in time of an anonymous gamete donation, the child does not yet exist. It is created with the help of a gamete donation, but does not – as in the case of adoption – exist before the decision to provide anonymity to the gamete donor.

Is the intending parents’ right to family a possible justification to allow anonymous gamete donations?

The Convention does not give grounds for this interpretation and also presupposes a false conflict between the interests of parents on the one hand and the rights of donor offspring on the other hand.

First of all, it is correct that in case of competing interests, the ECHR must examine whether a fair balance has been achieved. In S. H. and others v. Austria, a case regarding the prohibition of egg donation and donor ICSI in Austria, the ECHR decided that the right of a couple to conceive a child and to make use of medically assisted procreation for that purpose is also protected by Article 8, as such a choice is an expression of private and family life.7

The ECHR decided, however, that a state does not exceed its margin of appreciation if it prohibits single methods of medically assisted procreation, since the technology continues to give rise today to sensitive moral and ethical issues.8 The ECHR put special consideration to the fact that there is no European consensus yet on the regulation of medically assisted procreation. It should be noted, however, that such margin of appreciation does not concern the rights of donor conceived, once the methods have been allowed in a state.

This shows that the right to family of the intending parents is not a very strong with regard to access to artificial reproduction. If limitations of the right to family are accepted for these reasons, it implies that constraints can also be demanded to protect the rights of donor conceived persons to know their genetic origins.

Apart from that, the idea that donor anonymity can be justified by the intending parents’ right to family implies that there is a conflict between the interests of parents and donors on the one hand and the rights of donor offspring to know their ancestry on the other hand. That is not correct. Although it is regularly argued that the number of gamete donors will drop if their anonymity is not guaranteed forever, this is not proven. Several European states have abolished donor anonymity without a decrease in donors.9 States that report problems also face an increased demand because of the extension of recipients, do not follow a coherent recruitment strategy, and a rivalry between sperm banks that leads to the fact that donors are not used for as many families as is legally allowed.

Is the child’s right to know its genetic origins protected by the UN Convention on the Rights of the Child?

Article 7 para 1 of the UN Convention on the Rights of the Child (“CRC”) provides:

„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.“ (emphasis by author)

Some states and sperm banks try to reconstruct the meaning of parent and claim that the term „parent“ is not conclusively defined and could also mean the social parents, the adoptive parents, or the foster parents.10 This interpretation, however, would disregard the child’s right to know their parents to an absolute meaninglessness. If the state itself can define who a parent is, meaning it could also be a social parent, it will never violate this right, as anyone the state does not want to consider as a parent will not be regarded as parent.

Sperm banks also try to prove the irrelevance of Article 7 CRC for gamete donations by claiming that, historically, the article was mean to prevent kidnapping and forced adoptions as in Argentina during the Military Regimes in the 70s.11 This argument, however, rather supports the view that the term ‘parent’ means the genetic parents. If it also included the social and foster parents, it would not target kidnappings and forced adoptions, as the children concerned by these human rights violations would know and be cared for by their ‘new’ (social) parents. Also, the reservations declared by some states like the United Kingdom and the Czech Republic with regard to artificial reproduction, imply that the signatory states knew about the effects of this right with regard to donor conception. Lastly, even if the signatory states would not have had donor conception in mind when drafting the CRC; States that are signatories to the Convention are obliged to treat all children equally without regard to how they were conceived.12

Therefore, it is widely accepted that Article 7 para 1 includes the genetic parents. UNICEF, the UN children’s’ rights organization, states in its implementation handbook for the CRC that the definition of “parents” includes genetic parents, as this knowledge is of increasing importance to the child for medical reasons alone.13. Accordingly, Article 7 of the Convention on the Rights of the Child has been relied on in several jurisdictions to justify legislation that permits donor-conceived children to have access to identifying information about their donors.14

The child’s right to know his or her parents in Article 7 para 1 CRC is qualified by the phrase ‘as far as possible’ – as regards gamete donation, it may simply not be possible?

Although the child’s right to know his or her parents in Article 7 para 1 CRC is qualified by the phrase ‘as far as possible’, this cannot be construed as a State’s right to decide when it deems disclosure possible. It must also not be understood as the recognition of a parent’s absolute right to refuse access. Rather, it exists as recognition of the potential that the identity of a parent may be unknown for a variety of reasons and it is thus impossible for a child to know that parent or indeed parents.15 Typical examples are children whose parent cannot be identified because the mother does not know who the father is or in cases where the child has been abandoned.

Accordingly, UNICEF states that it is clear that children’s right to know their parentage could only be refused on the grounds of best interests in the most extreme and unambiguous circumstances, and children should be given the opportunity for this decision to be reviewed at a later date.16

Are there any indications that Article 7 para 1 CRC is applicable to gamete donation?

The implementation body of the Convention, UNCRC, has formally endorsed the abolition of donor anonymity in a number of countries.17 It has also demonstrated concern in its response to implementation of the Convention in a small number of European countries that the existence of donor anonymity may breach Articles 3 (the best interest of the child) and 7 CRC.18

In its Implementation Handbook for the Convention on the Rights of the Child, UNICEF does not accept any arguments brought forward to justify anonymous gamete donations. Regarding the common concern that donors will be deterred because they fear future embarrassment or even maintenance suits by their biological children, UNICEF simply refers to the fact that legislation can protect a donor parent from maintenance suits and that the experience of some countries suggests that donors are not deterred by the possibility of being identified. Most importantly, however, they point out that the law on artificial forms of fertilization, as with adoption, should be framed to protect the rights and well-being of children, not to meet the needs of childless couples.19

If anonymous donations violate the CRC, why is it still common in several state parties to the convention?

First of all, the UNCRC as convention body of the CRC has recourse to only limited remedial action in the event of a State Party failing to meet standards endorsed by the Convention on the Rights of the Child. At its most rigorous this would involve the use of diplomatic avenues, encouragement or embarrassment as a means of facilitating compliance.

Also, the CRC is a global convention and, unfortunately, children are subject to severe disadvantages and discriminations, including refugee children, children involved in armed conflict and children involved in the sex trade. Therefore, it is understandable that a donor conceived person’s lack of knowledge about their genetic origins is not a major global priority. Within the industrially developed states, however, where children’s most basic rights are generally respected, the UNCRC should give this problem a more significant profile.20

Concluding remarks

Although the formation of a family with the help of gamete donation is mainly regulated by the national states, international law has several clear implications on this practice. Member states of the European Union have to ensure that gamete donations are voluntary and unpaid, an obligation probably violated by states like the Czech Republic and Spain which have become the main destination of European fertility tourism.

As regards the European Convention on Human Rights, it is quite clear that anonymous gamete donations violate the respect for private life in Article 8 of the Convention and that the intending parents’ right to family cannot provide a justification for donor anonymity. Applications that a state party to the Convention has breached a right set out in the Convention can be filed by the affected individuals at the European Court of Justice. Hopefully, the Court will get an opportunity to decide on anonymous gamete donations in the near future.

Last but not least, the UN Convention on the Rights of the Child states explicitly that a child has the right to know his or her parents. Accordingly, the implementation body of the UN Convention on the Rights of the Child has formally endorsed the abolition of donor anonymity in a number of countries. Although the Convention on the Rights of the Child only provides limited remedial action in case of a State Party failing to meet the standards endorsed by the Convention, it is nevertheless important as it provides a global framework.

  1. Gaskin v. the United Kingdom, judgment of 7 July 1989, Series A no. 160, p. 16, § 39; Mikulić v. Croatia, no. 53176/99, §§ 54 and 64, Godelli v. Italy, judgment of 25 September 2012, no. 33783/09, § 52. [↩]
  2. Odièvre v. France, judgment of 13 February 2003, no. 2326/98, § 29. [↩]
  3. Godelli v. Italy, judgment of 25 September 2012, no. 33783/09, § 50. [↩]
  4. Godelli v. Italy, judgment of 25 September 2012, no. 33783/09, § 52. [↩]
  5. Jäggi v. Switzerland, judgment of 13 october 2006, no 58757/09 [↩]
  6. Pascaud v. France, 16 september 2011 no  19535/08 [↩]
  7. S. H. and others v. Austria, Judgment of 3 November 2011, no. 57813/00, § 82. [↩]
  8. S. H. and others v. Austria, Judgment of 3 November 2011, no. 57813/00, § 97. [↩]
  9. for example the United Kingdom changed its law in 2005 [↩]
  10. Cryos International Sperm Bank, Should the child have the right to know the identity of the donor? Retrieved 20 September 2014. [↩]
  11. Cryos International Sperm Bank, Should the child have the right to know the identity of the donor? Retrieved 20 September 2014. [↩]
  12. Moyal D, Shelley C (2010) Future child’s rights in new reproductive technology: thinking outside the tube and maintaining the connections, Family Court Review (3) 48 pp. 431–446, p. 438. [↩]
  13. UNICEF, Implementation Handbook for the Convention on the Rights of the Child, Fully revised third edition, September 2007, p. 105-106. [↩]
  14. Blyth E, Farrand A (2004) Anonymity in donor-assisted conception and the UN Convention on the Rights of the Child, The International Journal of Children’s Rights 12, pp. 89–104, p. 97; Shanner L, Legal challenges to donor anonymity, Health Law Review Vol. 11, no. 3 pp. 25. [↩]
  15. Tobin J, The Convention on the Rights of the Child: The Rights and Best Interests of Children Conceived Through Assisted Reproduction, Victorian Law Reform Commission. 2004, p. 37. [↩]
  16. UNICEF, Implementation Handbook for the Convention on the Rights of the Child, Fully revised third edition, September 2007, p. 107. [↩]
  17. Blyth E, Farrand A (2004) Anonymity in donor-assisted conception and the UN Convention on the Rights of the Child, The International Journal of Children’s Rights 12, pp. 89–104, p. 99. [↩]
  18. Norway CRC/C/15/Add.23, para. 10; Switzerland CRC/C/15/Add.182, paras. 28 and 29  – both states have meanwhile abolished anonymous gamete donations. [↩]
  19. UNICEF, Implementation Handbook for the Convention on the Rights of the Child, Fully revised third edition, September 2007, p. 108. [↩]
  20. Blyth E, Farrand A (2004) Anonymity in donor-assisted conception and the UN Convention on the Rights of the Child, The International Journal of Children’s Rights 12, pp. 89–104, p. 99. [↩]