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Recommendation 2156 (2019)
Anonymous donation of sperm and oocytes: balancing the rights of parents, donors and children
1. It is estimated that more than
8 million children worldwide have been born as a result of assisted reproductive
technologies, many of whom were conceived after sperm or oocyte
donation. Most States have traditionally favoured anonymous donation
models, as legislation in this area was often derived from laws
in the organ donation or international adoption fields. States also
sought to preserve the filiation of donor-conceived children in
accordance with the United Nations Convention on the Rights of the
Child (Articles 3, 7 and 8). Most States thus restricted the right
of donor-conceived people to know their origins.
2. In recent decades, there has been movement towards the recognition
of a right to know one’s origins, connected to the right to an identity
and to personal development: in international human rights law,
through its inclusion in the United Nations Convention on the Rights
of the Child as a “stand-alone” right for children, and in European
human rights law through the case law of the European Court of Human
Rights, which has recognised this right as an integral part of the
right to respect for private life. This right includes the right
to access information that would make it possible to trace one’s
roots, to know the circumstances of one’s birth and to have access
to certainty of parental filiation.
3. However, this right is not absolute and must thus be balanced
with the interests of the other parties involved in sperm and oocyte
donation: principally those of the donor(s) and the legal parent(s),
but also those of clinics and service providers, as well as the
interests of society and the obligations of the State.
4. This balancing of different rights, interests and obligations
has until recently often tended to favour the donor’s right to privacy,
and therefore donor anonymity. However, several European States
have decided to waive donor anonymity, and the State of Victoria
in Australia has abolished donor anonymity completely and retrospectively,
having come to the conclusion that the State has a responsibility
to provide all donor-conceived people with an opportunity to access
information, including identifying information, about their donors.
The current legislation and practices of Council of Europe member
States in the field of medically assisted procreation vary significantly.
5. The distinguishing features of the Council of Europe, namely
its mandate to promote human rights, democracy and the rule of law,
and its role of fostering good practice among the member States,
places the Organisation in an ideal position to address the risks
and challenges related to the anonymity of sperm and oocyte donations.
The Parliamentary Assembly thus recommends that the Committee of
Ministers make recommendations to member States in order to improve
the protection of the rights of all the parties concerned, while
focusing on the rights of the donor-conceived person, who is in
the most vulnerable position and for whom the stakes appear to be
higher.
6. The Assembly invites the Committee of Ministers to deliberate
on whether these recommendations should ultimately become legally
binding.
7. Whatever form the recommendations take, the Assembly considers
that they should be based on the following principles:
7.1. anonymity should be waived for
all future gamete donations in Council of Europe member States, and
the use of anonymously donated sperm and oocytes should be prohibited.
This would mean that (except in exceptional cases, when the donation
is from a close relative or friend) the donor’s identity would not
be revealed to the family at the time of the donation, but to the
donor-conceived child upon their 16th or 18th birthday. The donor-conceived
child would be informed at that time (ideally by the State) of the
existence of supplementary information on the circumstances of their
birth. The donor-conceived person could then decide whether and
when to access this information containing the identity of the donor,
and whether to initiate contact (ideally after having had access
to appropriate guidance, counselling and support services before
making a decision);
7.2. the waiving of anonymity should have no legal consequences
for filiation: the donor should be protected from any request to
determine parentage or from an inheritance or parenting claim. The
donor should receive appropriate guidance and counselling before
they agree to donate and their gametes are used. The donor should
have no right to contact a child born from donation, but the donor-conceived child
should be given the option to contact the donor, as well as possible
half-siblings, after their 16th or 18th birthday – subject to certain
conditions being met;
7.3. Council of Europe member States which permit sperm and
oocyte donation should set up and run a national donor and donor-conceived
person register with a view to facilitating the sharing of information,
as stipulated in paragraphs 7.1 and 7.2, but also with a view to
enforcing an upper limit on the number of possible donations by
the same donor, ensuring that close relations cannot marry and tracing
donors if the medical need should arise. Clinics and service providers
should be required to keep and share adequate records with the register,
and a mechanism should be established to provide for cross-border
exchanges of information between national registers;
7.4. the anonymity of gamete donors should not be lifted retrospectively
where anonymity was promised at the time of the donation, except
for medical reasons or where the donor has consented to the lifting
of the anonymity and thus inclusion on the donor and donor-conceived
person register. Donors should be offered guidance and counselling
before they decide whether or not to agree to the lifting of anonymity;
7.5. these principles should be applied without prejudice to
the overriding consideration that gamete donation must remain a
voluntary and altruistic gesture with the sole aim of helping others,
and thus without any financial gain or comparable advantage for
the donor.