Sperm donation is only to some extent regulated under German law, which leaves many decisions up to fertility doctors and clinics. Egg donation and surrogacy are not allowed, but parents who receive treatment in other countries will not be prosecuted. In June 2018, the government established a central registry for sperm donor conceived persons, but there is no entry of donor conception on the birth registry.
There are estimations that between 100,00 to 130,000 children have been conceived by sperm donation in Germany, but no precise figures are known. It is also assumed that only five to 30 per cent of the parents who had a child through sperm donation actually disclose their conception to the child.
Donor conception in Germany
Legal uncertainties regarding sperm donation since the beginning
Until 1970, sperm donation was banned by the doctor’s association, which meant that a doctor providing such treatment risked losing his license. In 1970, the doctors´ association reversed this assessment. However, it warned doctors of the legal uncertainties regarding sperm donation, because a donor conceived child was able to appeal the legal fatherhood of its social/legal father and claim information about the donor from the respective doctor. Therefore, the doctors association explicitly advised that donations could not be provided by promising anonymity.
However, as there were no clear legal regulations of sperm donation, the practice of doctors developed quite differently. Sperm donors were promised (or obliged to keep) anonymity, parents were forced to grant anonymity to the donors, too, and sometimes even not to tell their children about their donor conception.
Right to information about ancestry is regarded a constitutional right
In 1989, Germany’s Federal Constitutional Court decided that everybody has the right to receive information about their ancestry (if such information can be retrieved) as part of their constitutional rights. The decision was not surprising, as Germany’s highest civil court had indicated such right in several decisions since the 1960s.
Anonymous sperm donations continued
Despite this decision, doctors and fertility clinics continued to provide anonymous sperm donations. They were probably able to keep doing so because only a few donor conceived persons knew about their conception. Additionally, the legal situation still left many uncertainties since the decision of the Federal Constitutional Court was not implemented in written law. Donor conceived people do not have an explicit right to claim information about donors from the clinics. This made it easy for doctors and clinics to state that donor conceived persons do not have any claims at all.
2013: Court states that fertility doctors must give information about donor to child
In 2013, Spenderkinder-member Sarah won a legal case against her parent’s fertility doctor at the Regional Court of Hamm, North Rhine-Westphalia.1 Thanks to the ruling, the doctor was compelled to give Sarah information about her genetic father, the sperm donor. The decision gained a lot of media attention and made it on to the front page of several nationwide newspapers. After this decision, it was clear that anonymous sperm donation was not possible any longer.
In 2015, the Federal Court of Justice, Germany’s highest civil court, decided a similar case identically and also stated that the right to know about one’s ancestry does not depend on a certain age. Therefore, also children could claim it. In 2019, the Federal Court of Justice decided that also sperm donor conceived persons who were conceived in the former German Democratic Republic had the right to information about their genetic father. The court said that even if the promise of anonymity was legal during the GDR, the rights of the child would normally prevail.
Medical records supposedly destroyed 10 years after treatment
However, another problem was that many clinics claim that they destroyed their medical records 10 years after the treatment; incorrectly revoking the minimum storage time for medical records. This means that donor conceived persons had the right to know about their origins, but clinics could claim that the data was simply not available. Courts, however, state that clinics and doctors must take all reasonable effort to provide such information, for example by interviewing former employees. In 2007, Germany implemented the European Union Tissue and Cells Directive 2004/23/EC and accordingly provided that records about sperm donations have to be retained for 30 years. Since June 2018, clinics have to retain the data 110 years.2
- OLG Hamm, Judgement of 06.02.2013, Az. I-14 U 7/12. [↩]
- §13 Absatz 3 Samenspenderregistergesetz. [↩]