Historical context of donor conception in Belgium
The first cases of medically assisted donor insemination in Belgium probably took place around 1950. However, because the practice was surrounded by serious taboo, inseminations were carried out in secrecy and no records were kept. The rather limited demands for donor inseminations at that time were fully met with fresh semen.
In 1970, the first sperm bank was founded in a private fertility practice near Brussels. Since then, other fertility practices and clinics also gradually stopped using fresh semen and started using frozen sperm stored in sperm banks. In the beginning, inseminations were only carried out on married heterosexual couples. Since the early 1980s, however, clinics also started treating lesbian couples – the first documented donor conceived child of a lesbian pair was born in 1983 in the University Hospital of Brussels.
Until 2007, donor conception was a largely unregulated practice. This means that each fertility centre defined its own individual policy, e.g. regarding the maximum allowed number of offspring per donor. Most sperm donors from that era were anonymous, and their anonymity was ensured by means of a written agreement with the clinic. It is important, however, to point out that agreements predating the law of 2007 (see below) do not have any binding legal value.
Because clinics were never obligated to register donor assisted fertility treatments, actual numbers of donor conceived children can only be estimated. In 2012, the total number of Belgian donor offspring was estimated at around 50,000.
Since the late 1990s, Belgian fertility clinics import large amounts of foreign donor sperm to keep up with demand. Today, about 50% of the donor sperm used in Belgium is imported from abroad, mostly Denmark.
Moreover, Belgium has become a popular destination for reproductive tourism: different nationalities travel to Belgium to undergo treatment with donor gametes, mainly in order to evade legal restrictions in their home country, or because they are excluded from treatment because of their age or sexual orientation. Other factors contributing to this tourism are: Belgium’s central location in Europe, the pioneering fertility treatments, the higher success rates, and the relative shorter waiting lists. The group of foreigners seeking donor treatment in Belgium consists largely of French lesbian couples applying for sperm donation.
On 6 July 2007, a law was issued to regulate various forms of medically assisted reproduction, including sperm, oocyte, and embryo donation (Law on medically assisted reproduction and the use of surplus embryo’s and gametes). All regulations pertaining to the donation of gametes can be summarized as follows:
- Only free donation of gametes is allowed. A financial compensation may be paid to cover for expenses and loss of earnings. Trafficking in gametes is explicitly forbidden.
- Donation for eugenic or sex selection is prohibited, although matching physical characteristics of donors and recipients is allowed.
- Gametes from different donors cannot be inseminated simultaneously.
- No more than six different women can have children from one and the same donor.
- At the time of the donation, the donor gives up his parental rights and duties. Once the donated gametes are inseminated, the recipient woman becomes the legal parent of the child. If she is married, her partner automatically becomes a legal parent as well. If not, her partner will have to declare his/her parenthood by declaring the child at the municipal office.
- Fertility clinics have to register the physical characteristics of every donor, as well as any medical information that might be important for the future child’s healthy development. A central registration system should enable the exchange of information between clinics.
- Fertility clinics are obliged to make all identifying information about the donor inaccessible. All staff is bound by professional confidentiality. Non-identifying medical information can be communicated to the recipients if this is required for the child’s health.
- Non-anonymous donation is allowed when based on mutual agreement between the donor and the recipient(s).
- Fertility clinics may refuse to treat single women or homosexual couples based on moral objections, but in that case, they have to refer them to another clinic that would accept them for treatment.
Additional comments about the Belgian law
- ‘Non-anonymous donation’
The option of non-anonymous donation (commonly termed known donation) was included in the law mainly for pragmatic reasons, such as the difficulties that are experienced in recruiting suitable voluntary oocyte donors. In an attempt to avoid unacceptably long waiting lists, recipients were allowed to bring a personal acquaintance (e.g. sister) as their donor. In theory, ‘known donation’ is also allowed for sperm donation, but in reality, this option is rarely used. This is because fertility clinics explicitly favour strict anonymity and counsel couples accordingly. The vast majority of sperm donations in Belgium are thus anonymous, making it impossible for most Belgian donor offspring to trace their complete biological roots.
- Lack of central register
Although the law limits the number of donations per donor, and prescribes that fertility clinics exchange information about their donors, Belgium still doesn’t have a central donor register. Therefore, fertility clinics are only able to keep track of the donations made to their own sperm banks, but they cannot verify whether a donor has not yet donated to other sperm banks. As a result, donors can easily conceive more children than is actually allowed. Also, if they would pass on a genetic condition to their offspring, clinics are unable to caution other clinics and prevent them to further use the affected donor gametes. In 2013, the debate on the lack of a donor register, a European Alert System in case of genetic abnormalities of donors, and current policy regarding donor anonymity in Belgium was refuelled by the revelation that 20 children were conceived in Belgium by a Danish donor with the genetic disease Neurofibromatosis type 1.
- Preservation of medical records
Although medical records must be preserved for at least 30 years, many fertility doctors are suspected to have destroyed their files, making it impossible for donor offspring or their parents to retrieve any information about their donor.
Besides the fact that commercial surrogacy is legally forbidden, there is currently no legislation regulating other aspects of surrogacy.