Meeting of the Parliamentary Committee on Human Rights and Equal Opportunities for Men and Women - Monday, 8 May 2023
Item B2. The sensitive issue of sperm donor anonymity and the need to balance the rights of the parties involved
I was recently asked by the Chair of the Parliamentary Committee on Human Rights and Equal Opportunities between Men and Women, to submit my views regarding issues arising from the legal obligation not to disclose the identity of sperm donors under the relevant provisions of the Implementation of Medically Assisted Reproduction Act, and I responded to that invitation by letter dated.10/3/2023.
For your information, various Submissions were previously submitted to the Parliamentary Health Committee on behalf of my Office concerning other aspects of the Implementation of Medically Assisted Reproduction Act. However, the issue of the lifting of donor anonymity does not seem to have been satisfactorily regulated at national level, nor does there seem to be a uniform policy at European level. This is a particularly sensitive and complex issue that involves balancing the rights of all parties involved.
Under the UN Convention on the Rights of the Child, the right of the child to know his or her parents (Article 7), identity, nationality and all family relations (Article 8) is crucial. The right to privacy (Article 16), the right to the highest attainable standard of health (Article 24), the right to have his or her best interests taken into account (Article 3) and the right to participate, to be heard, etc. (Article 12) are also relevant to the issue under discussion.
On the other hand, the rights of the donor must also be taken into account, in particular the right to privacy, from which anonymity derives. There have, however, been cases at the international level where sperm donors or surrogate mothers have eventually claimed paternity or maternity, which, in turn, has affected other rights, and possibly had a negative impact on family relationships and a child's quality of life.
At the international level there appear to be no common standards and, therefore, each state has its own laws and standards. The ideal would be, at the European level, to have an inter-state agreement guaranteeing a balance of rights, i.e. on the one hand to guarantee the right of the child to know his/her biological parents or surrogate mother as the case may be, with or without an age limit but also on the basis of the principle of evolving capacities (age, maturity and degree of development), as an expression of the rights deriving from the Convention, but at the same time, the legislation should ensure that the disclosure of the biological parents does not create legal d A prerequisite in such a case is that all parties involved are adequately informed, consent is obtained where necessary and appropriate psychological assistance is provided, particularly to children.
I draw attention to Resolution dated [URL=HTTPS:/ASSEMBLY.COE.INT/NW/XML/XREF/XREF-XML2HTML-EN.ASP]Resolution dated [URL=HTTPS:/ASSEMBLY.COE.INT/NW/XML/XREF/XREF-XML2HTML-EN.ASP?FILEID=25439]. 20/2/2019 of the Parliamentary Assembly of the Council of Europe on this issue, which includes clear recommendations to the Council of Ministers, urging compliance by states. The Parliamentary Assembly recognises that the right to know one's origins and roots is not an absolute right, but is about balancing rights between the parties involved, namely the child, donors, legal guardians, clinics and service providers, taking into account the interests of society and the obligations of the State, indicating the need to protect the interests of all parties.
With regard to the issue of retroactivity, the Parliamentary Assembly recommends that donor anonymity should not be lifted in cases where at the time of donation there was a clear commitment to anonymity, except for medical reasons or if the donor has given his or her consent.
Beyond this, however, with regard to how States should approach the issue in the future, the Parliamentary Assembly made the following recommendations:
- A gradual ban on anonymous donation in order to achieve anonymity for future gamete donations.
- The identity of the donor should not be disclosed at the time of donation, but when the child reaches a certain age, e.g. 16 years or later.
- It is up to the individuals whose conception resulted from donor gametes to decide whether and when they wish to have access to information concerning the identity of the donor and whether to seek any communication with the donor, after appropriate information, counselling and support.
- The lifting of anonymity should not create any legal obligations for donors (whether arising from guardianship or in relation to inheritance issues).
- Not to grant donors the right of communication, but to the child himself/herself if and when he/she wishes.
- To keep up-to-date records in order to facilitate access to information and to lay down conditions as to the maximum number of donations from the same donor, etc.
- Ensure the child's right to maintain his/her identity and family ties without arbitrary interference with his/her privacy.
In view of the above, I believe that the State should undertake a thorough study of European case law, the reports of expert committees and the resolution under consideration, which set out the guidelines on which any discussion on the amendment of national legislation concerning the provisions of medically assisted reproduction should be based. I hope that the debate will continue, with the involvement of a wider range of policy makers and with a clear intention to make substantial reforms in the way the issue should be approached holistically.
(MB/SX)
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