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. There is no central registry or entry of donor conception on the birth registry. The rights of donor conceived people have not been paid attention to in the past.
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 1988, 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 holding up the anonymous sperm donations. They were probably able to keep doing so because only a few donor conceived persons had obtained knowledge about their conception. Additionally, the legal situation still left many uncertainties since the decision of the Federal Constitutional Court was not mirrored 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. 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.
Medical records supposedly destroyed 10 years after treatment
However, another problem was that most clinics supposedly 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 there was no more data available. Due to the European Union Tissue and Cells Directive 2004/23/EC, implemented in Germany in 2007, records about sperm donations now have to be stored for 30 years. However, Spenderkinder thinks that they should keep the files for a longer time to comply with the constitutional rights of donor conceived persons, as the prescribed 30 years is only a medically defined period intended to guarantee that diseases can be traced back to their origin.