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.

1. Audrey tells more about her story in English at a symposium in 2021. [↩]
2. Application no. 42326/98 – decision [↩]
3. Application no. 33783/09 – decision [↩]

The New York Times recently published an article by Jacqueline Mroz on serial sperm donors in the New York Times: “The Case of the Serial Sperm Donor- One man, hundreds of children and a burning question: Why?“

The article names several private sperm donors who seem to have fathered respectively more than 100 children. One of them, Mr. Meijer from the Netherlands, additionally registered as a sperm donor at several clinics, also internationally. Stichting Donorkind estimates that the number of his children could run to several hundred. Most recipient parents were not aware of his multiple international donations and that their children would be put in the situation of having several hundred half siblings.

The article cites Ties van der Meer of Stichting Donorkind and Christina Motejl of Spenderkinder, both also active for Donor Offspring Europe, both expressing concern about the lack of regulatory and legislative bodies for the international fertility industry land the state of mind of serial sperm donors.

This year the Convention on the Rights of the Child will have its 30th anniversary. To celebrate this the UN in Geneva is opening her doors to the general public, inviting them to events where topics concerning rights, welfare and best interests of children are going to be discussed.

Stephanie Raeymaekers, a Belgian donor conceived and member of DOE was asked to put a presentation at one of the workshops together. With the help of the Australian researcher Sonia Allan, she reached out to others asking for their contribution as participation.

For the first time in history donor conceived from all over the world will unite and are going to address some of the issues they have to endure due to fact their human rights haven’t been recognised or aknowlegded yet. Among them donor conceived who already made a difference in their own country but also are advocating for international changes so that next generations won’t have to deal with same injustices.

Nationalities present: USA, Canada, Australia, UK, Portugal, The Netherlands, Ireland and Belgium.

If you want to attend the workshop please register before the 11th of November through https://reg.unog.ch/event/28741/. You must register for an INDIGO account first, then go back to original link, and then select register. Our session is on Tuesday 19 November at 11 a.m., Room XXI, Workshop: Children’s Rights in the Age of Biotechnology.

Arte currently features the documentary “Les enfants du secret” about the situation of donor conceived persons in France. The director Rémi Delescluse is donor conceived himself and takes the viewers along on his search for his genetic father. In France, donor conceived persons are not allowed to receive any information about their genetic father. On his journey, Rémi interviews several doctors who created the system, donors and meets other donor conceived persons (amongst them many members of PMA). He also accompanies several members of PMA who finally find their genetic relatives with the help of commercial DNA tests (which many donor conceived persons use nowadays successfully in their search). It is a beautiful and touching documentary and we hope that it will deepen the sympathy and understanding for the demands and wishes of donor conceived persons in France and Europe.

The movie is available in French and in a dubbed German version and can be viewed on Arte’s website until 6 September 2019.

It is a current saying amongst donor conceived persons that Donor Anonymity is actually dead – thanks to modern direct-to-consumer (DTC) genetic tests like Ancestry, 23andme, Family Finder or MyHeritage DNA. A person might discover from a DTC genetic test that they are donor-conceived, or discover the identity of the donor from whose sperm or eggs they were conceived. They might also discover the identity of genetic half-siblings, conceived from the sperm or eggs of the same donor. The persons who are identified do not even need to be registered at the test because they can be tracked with the help of relatives who are registered. This is of course a threat to the reproductive industry, which has been relying on donor anonymity for a very long time. One academic from Belgium even demanded to ban access to DTC tests to protect the anonymity of donors.

The Progress Educational Trust in partnership with the University of Liverpool is holding an event to discuss the impact of Direct to Consumer DNA testing on anonymity in London on Wednesday 19th 2019 from 6.30pm-8.15pm. The European Sperm Bank and the London Women’s Clinic is providing additional funding. The event will be co-chaired by Sarah Norcross and Dr Lucy Frith, with speakers including Debbie Kennett, Andy Waters, Becky Gardiner and Louise Johnson. Attendance at this event is free, but advance registration is required.

We are glad that one of the speakers, Becky Gardiner, is donor conceived and can report about the importance of DNA tests from first hand. DOE-member Shirley, who is Becky’s half sister, will also be attending.

This week an advertisement appeared on Dutch TV for IVF Spain, a fertility clinic offering treatment with anonymously donated sperm and eggs: something which has been banned in the Netherlands since 2004.

It is not the first time that IVF Spain has directly targeted the Dutch market. Their website is fully translated into Dutch (as well as German, French and English), they advertise the use of anonymous gametes prominently, and they regularly hold meetings in the Netherlands for people interested in their services.

For Donorkind – the Dutch organisation representing donor conceived people – it is unacceptable for IVF Spain to advertise services which are illegal in the Netherlands. Everyone has the right to their genetic history. Knowing where you come from, and your medical background, is not a trivial point. It is an essential part of every person’s identity.

Donorkind therefore immediately took action. Together with the Donor Detectives we contacted many organisations and people in the Netherlands: politicians, the press, the Ministry of Health, Welfare and Sport, the Advertising Standards Association and the Children’s Ombudsman.

We expect any company advertising in the Netherlands to respect Dutch law, rather than offering ways to get around national legislation. Furthermore, it is important for prospective parents to realise that the promise of anonymity is merely an illusion.

In the current age of direct-to-consumer DNA tests (which are only growing in popularity), donor conceived people can discover how they were conceived with relative ease. If not told the truth by their parents at an early age, this discovery can lead to an identity crisis for donor conceived people and cause tension within the family.

On 1 July 2018, Germany finally established a donor registry as the the Sperm Donor Registry Act (SaRegG – Samenspenderregistergesetz) became effective. The Act provides for a central registry, the Samenspender-Register, at the German Institute for Medical Documentation and Information (DIMDI) in Cologne, where doctors have to transfer identifying data about the donor and the mother as name, address, nationality, and place of birth. The sperm donor will be invited to leave additional information about himself for the child.

Donor conceived persons have a right to access information about their donor from 16 years of age. This is, however, not a minimum age as the parents of the donor conceived child can demand the identifying data for the child.The data will be retained for 110 years.

Spenderkinder, the association of donor conceived adults in Germany, welcomes the creation of a central registry where donor conceived persons can get information about their biological father. This is a step long overdue. Although anonymous sperm donations were never legal in Germany, doctors allegedly destroyed data on sperm donations after only ten years in the past.

Unfortunately, the registry has no retroactive effect, meaning that it will only retain data from sperm donations from 1 July onwards. This means that donor conceived persons conceived before this date will have to demand identifying information about their biological fathers from the fertility clinics. At least, the retainment period for such data was extended to 110 years. Accordingly, any destruction of data currently available is prohibited.

As a second point of criticism, the registry will neither provide information about donor siblings nor control that a single donor can only sire a certain numer of donor children. Also, the registry will not retain data about so called embryo donation.1

The Act also excludes the possibility to have the sperm donor declared as the legal father in order to protect sperm donors against claims for child support or inheritance from any children resulting from donated sperm. Although this corresponds with the legal situation in many other countries, there are serious concerns that the amendment violates the constitutional right of donor conceived persons to an equal treatment. Persons conceived „naturally“ are entitled to have their biological father also determined as legal father. It would provide sufficient protection for sperm donors to simply exclude any rights to support or inheritance.

1. While egg donation is not allowed in Germany, the procurement of embryos whose biological parents do not longer want a child is a legal loophole. [↩]

Every 7 years, France has to review its laws on bioethics. The laws were last reviewed in 2011 so this year the law is due to be reviewed and so a debate has been raging in France since January: as this is France the controversies have, of course, turned into yet another national crisis. People from every background and discipline are engaged in a war of words in what we call the”Etats-Généraux,” in reference to our beloved revolution.

Nonetheless we donor conceived people believe that our country has never been so close to changing the rules about anonymity of donors. Most of our intellectuals and politicians now seem to be in favour of a system like the UK and with the developments in other European countries, France becomes more isolated every year. These facts weigh greatly on our progressive and Europe friendly president, Emmanuel Macron.

This summer France’s high bioethical council must issue a very important report on all subjects including access to the origins of donor conceived people in both the future and retrospectively. It is crucial that the outline of the future law must be discussed by parliament by the end of 2018.

Vincent Brès, président de l’association PMAnonyme

On the 6th of March, Steph of Donorkinderen Belgium was invited by the European Centre for Law and Justice to come and speak at their event at the United Nations in Geneva. Other speakers were the British donor conceived Dr. Joanna Rose and professor Clotilde Brunette-Pons.

Steph did an awesome job – you can watch the video of her speech on youtube or read it on Donorkinderen’s website. You can also watch a video of Joanna’s speech “Respect my right to know my biological father”. 

Many thanks to the European Centre for Law and Justice for hearing them out. Let us hope that some day the voices of donor offspring will not only be heard at a UN side event, but in the main room.