The European Court of Human Rights has ruled that people born via sperm or egg donation have a right to know the identity of their biological parents (Gauvin-Fournis and Silliau v. France application no. 21424/16; judgement in French). However, in its ruling on 7 September 2023, the court also stated that French law — which previously allowed for complete anonymity of sperm and egg donors until 2022 — does not violate the right to privacy under Article 8 of the European Convention on Human Rights.
In its decision, the Court emphasised that the French legislature had weighed up the interests and rights concerned in an informed and gradual process of reflection, public consultations. The Court therefore said that France acted within its permissible margin of appreciation. The law in force from 1994 to 2022 also provided for exceptions to the absolute anonymity of donors. The Court emphasised that there is no clear consensus among the member states of the Convention on the question of donor anonymity but only a trend towards abolishing anonymity. Regarding the law since 2022, the Court ruled that France had also operated with the permissible margin of appreciation by making access to donor children dependent on the donors’ consent.
The Court’s decision highlighted that France carefully considered interests and rights through what it said was a thoughtful process, including public consultations. The Court affirmed that France stayed within acceptable limits. The law from 1994 to 2022 allowed some exceptions to donor anonymity. The Court noted that member states don’t unanimously agree on donor anonymity, but there’s a tendency to move away from it. For the law since 2022, the Court determined that France acted appropriately by linking access to donor information to the donors’ consent.
The plaintiffs
The court case was brought by two donor-conceived people.
Audrey Kermalvezen — a French lawyer, activist for the rights of donor-conceived people in France and founder of the association Origines. She wanted to find out if her brother, born in 1977, had been conceived using the same donor.
Clément Silliau — born in 1989 and who made the same requests as Audrey.
What is the situation in France regarding sperm and egg donation?
Before 2022, French law guaranteed absolute anonymity for sperm and egg donors. Although the law has since changed, gametes donated anonymously before 1 September 2022 can still be used until 31 March 2025. Consequently, only individuals conceived after this later date have the unequivocal right to discover their genetic identity.
In its decision, the Court emphasised that the French legislature had weighed up the interests and rights concerned in an informed and gradual process of reflection, public consultations. The Court therefore said that France acted within its permissible margin of appreciation. The law in force from 1994 to 2022 also provided for exceptions to the absolute anonymity of donors. The Court emphasised that there is no clear consensus among the member states of the Convention on the question of donor anonymity but only a trend towards abolishing anonymity. Regarding the law since 2022, the Court ruled that France had also operated with the permissible margin of appreciation by making access to donor children dependent on the donors’ consent.
It is a chamber decision by seven judges of the Court, against which a referral to the large chamber of the Court can be requested three months after delivery. If such a request is made, five judges will decide whether the case should be investigated further.
The plaintiffs Audrey Gauvin-Fournis and Clément Silliau
The first plaintiff is the French lawyer Audrey Kermalvezen (née Gauvin-Fournis), born in 1980. She is an activist for the rights of donor-conceived people in France and founded the organisation Origines together with her husband Arthur Kermalvezen, who is also donor-conceived. In 2014 she published the book “Mes origines: une affaire d’État” (My origins – a state affair) about the practice of sperm donation in France.1 Between 2010 and 2016, she sued the state-organised reproductive clinic CECOS in several instances to obtain non-identifying information about her donor, and to find out whether she and the brother with whom she was raised had the same donor. She also requested that the French administration contact her donor to ask if he would like to remain anonymous. Her efforts were unsuccessful and led to her decision to bring a case to the ECHR in 2016.
The second plaintiff is Clément Silliau, born in 1989, who found out how he was created at the age of 17 and made the same requests as Audrey.
Seven years after the filing of the lawsuit, during which the French bioethics law was amended, the Chamber’s decision has now been delivered.
Assessment
It is the first ruling of the Court on the rights of donor conceived persons. Previous rulings on the right to know each of the biological parents concerned cases of adoption or affairs.
In 2003, the Court decided in Odièvre vs. France2 that the possibility in France for a woman to give birth anonymously does not violate Article 8 of the Convention. With the possibility of anonymous birth, French legislation aimed to protect the right to life of mother and child by preventing abortion and abandonment. In addition, France had just passed new laws that allowed anonymously adopted people to ask their birth mother, through an intermediary institution, if she wanted to waive her anonymity. If the mother dies before being contacted, her identity is transmitted to her child if that child asks for it. Furthermore, plaintiff Pascale Odièvre received non-identifying information about her genetic parents and siblings, which allowed her to trace some of her roots.
The Court decided differently in 2012 in the case of Godelli vs. Italy3 regarding the practice of anonymous birth in Italy at the time. The court found Article 8 of the Convention had been violated because the plaintiff, Anita Godelli, had no access to information about her mother and her birth family. The plaintiff’s request to receive information was rejected in its entirety without weighing up the conflicting interests. Italian law does not attempt to find a balance between the plaintiff’s conflicting rights to learn more about her parentage and the mother’s to remain anonymous, but instead opts for anonymity without any consideration.
Above all, there is a clear parallel between the recent judgement and the Odièvre case: here, too, the French legislature amended the law during an ongoing procedure of the Court so that the genetic parent had to be contacted and asked whether they would like to waive anonymity. It therefore seems very possible that the lawsuit might have motivated the French state to amend the legal situation in the first place. This is positive, because the fact that the donor is contacted and has to decide whether or not to waive his or her anonymity is better than absolute anonymity.
However, the Court could have decided differently. In the case of anonymous births, the right to life must be taken into account because the aim is to prevent illegal abortions from being carried out or children from being abandoned. This right is not affected by sperm and egg donation. These are planned pregnancies. The child does not yet exist at the time of donation.
One must take into account that the Court (only) provides for a minimum human rights standard for all state parties to the Convention. In doing so, it usually takes into account the legal situation in the majority of the state parties. The Court therefore also points out that, although it recognizes a trend towards more openness on the issue of donor anonymity, there was no consensus. In 2022, the Council of Europe published a comparative study on the right of donor-conceived people to information about their origins (Comparative Study on access of persons conceived by gamete donation to information on their origins), in which a recommendation from the Council of Europe was suggested that member states should establish a mechanism to ensure the right to information.
On a positive note, the Court emphasised that Article 8 of the Convention applies to donor-conceived people and that they have, in principle, a right to know each of their genetic parents. The clear reference to the legal situation in France that changed in 2022 suggests that the new regulations played a decisive role in the Court not assuming a violation of the Article 8 of the Convention. Accordingly, there are indications that the Court could consider a violation of Article 8 in member states to the Convention that provide for absolute anonymity of donors like Denmark, Belgium, Spain and the Czech Republic.
It leaves, however, a bitter feeling that the recognition of human rights of donor conceived persons shall depend on a consensus of the state parties to the Convention – without actually addressing the issue if the rights are protected accordingly. It is also questionable that the Court seems to apply a different standard to donor conceived persons than to persons who were conceived naturally, as it does not criticise that French law passes the identity of a woman who gave birth anonymously to a child if the woman is deceased, but does nor provide the same mechanism to donor conceived persons if their donor is deceased.
Reactions
Shortly before the verdict, and after 14 years of legal proceedings, Audrey Kermalvezen continued to hope for a favourable outcome because the change in law did not change anything in her situation:
“I hope that the judges will realise how inadequate the system recently introduced by France is. The only information I received legally after almost 14 years of procedures, in March 2023, was that my donor had died. Therefore, I will never have the right to know his identity. I will also never have the right to access other so-called non-identifying information, since the French state has decided to make its transmission dependent on the consent of the donor! That’s why, for example, I will never find out my donor’s medical history, even though it is recorded in his file at the sperm bank.Specifically, I have no right to know when he died,nor the cause,whether he had children,what his medical history is,what he looked like who he was…
I have no information about my biological siblings. I have no right to know how many siblings (half-brothers and half-sisters) I have or who they are…
Not even if my brother and I were conceived with the same donor. As a reminder, using a DNA test to determine one’s origins is a criminal offence in France (a fine of between €3,750-€30,000 fine and 2 years in prison if this allows an anonymous donor to be identified. ”
After the verdict, she said that it left her with a bitter feeling and that she does not consider the ruling of the Court to be in line with previous decisions on Article 8 of the Convention. She indicated that she was considering requesting a referral to the Grand Chamber.
She also stated that states like Sweden already prohibited anonymous donations in 1984, and the United Kingdom in 2003. Therefore, the trend towards recognizing the rights of donor-conceived people to their origins was not as recent as the Court had ruled.
If it’s not good, it’s not the end
Many donor conceived people will empathise with the sadness and the feeling of not having been treated fairly. As a lawyer, Audrey was aware of the chances of success in her case from the start and believed in a fair chance. The fact that she and Clément took this on and tried to fight for the rights of all donor children in Europe is admirable.
This fight has just begun. The trend towards more openness is present in Europe: there are more and more states that decide to protect the rights of donor-conceived people to know their parentage. Even if the legal situation is rarely perfect, it can be improved: it is a process that is slowly progressing. It’s not a sprint, it’s a marathon, and strategic litigation is just one possible path to success. It will continue to be important that donor-conceived people join forces, share their experiences and demand a change in the legal situation.