An association has been formed of sons and daughters of people who resorted to assisted reproduction who, now as adults, are demanding access to know the identity of the donors.
Sperm donations and egg donations in Spain are anonymous, in accordance with article 5.5 of Law 14/2006, of 26 May, on assisted human reproduction techniques. Only in extraordinary cases of serious health risk to the child may the identity be revealed, provided that such disclosure is essential to avoid the danger.
Although article 5.5 also establishes that the donation will not be for profit, the truth is that it is a big business that moves a lot of money in this country. In fact, Spain is the country where the most reproductive tourism is carried out in all of Europe, precisely, among other things, due to the anonymity of the donations, receiving, among others, people who come from countries where anonymity is prohibited, such as Sweden or Germany.
The fact of wanting to access assisted reproduction techniques using donors (both sperm and eggs) with an undisclosed identity can be due to many factors. Firstly, not considering the possible future needs or desires of the child, as long as they want to know their biological origins. In fact, in Spain until very recently it was an issue that was not even discussed and it was assumed, culturally, that this was the case. It can also be a deliberate decision that we do not want or need the identity of the donor, neither for ourselves nor for our offspring.
From a strictly legal perspective, it should be remembered that there is no right to be a father or mother. However, there are a series of children’s rights that, with the anonymity in donations for assisted reproduction, are ignored. Specifically, the United Nations Convention on the Rights of the Child, to which Spain is a party, establishes in article 8 the obligation to respect the child’s right to preserve their identity, including family kinship. In other words, any child (and future adult) has the right to know their biological origins. The biological Convention can be criticized. And in fact, it certainly is, but it is the one we currently have. In addition, it should be remembered that Spain did not make any reservations in relation to this article 8, therefore, it is mandatory. In turn, article 3 of the Convention establishes the need to act in accordance with the best interests of the child. An anonymous donation may be difficult to justify under this higher interest, especially if we take into account the right to know the origins established by the Convention.
If we look around us, the trend is towards the abolition of anonymity. Sweden, Germany, the Netherlands, England or Portugal. Others, such as France and Spain have not abolished it. But on the other hand, as we have pointed out, many adults continue to choose to be donors or to use assisted reproduction techniques through anonymity.
A curious model is Denmark, which seems to respond to all the adults involved, not to the children, whether they are in favor of or against anonymity, while ignoring, however, the mandate of the Convention on the Rights of the Child. Denmark allows anonymous donations (with a basic or extensive profile where a minimum or more information about the donor is accessed), non-anonymous where even the child will be able to contact the donor when he or she turns 18 if the latter has not revoked this permission, or even allows egg or sperm donations by relatives or friends, with certain legal limitations and who will then not be able to claim rights as parents.
This association, mentioned at the beginning of this article, aims to end anonymity in donations. There are similar precedents that achieved this, for example, years ago in Germany, also due to a mobilization of sons and daughters who demanded it and achieved a regulatory change and at this time, it is one of the countries where anonymity is prohibited.
According to the statutes of the aforementioned association, they want to be able to access the data of who the donors were and they intend to take it to court. Despite their legitimate expectations, in the opinion of the undersigned, I do not see a favorable retroactive ruling possible. Additionally, it is necessary to exhaust all national judicial channels in order to aspire to be found right at the supranational level, opening up two possible channels provided that the national channel has been properly exhausted.
At the level of the European Court of Human Rights, there would probably be no conviction against Spain, since, today, the ECHR would probably appeal to the country’s discretionary action (margin of appreciation). Furthermore, it should be borne in mind that the ECHR already examined this issue in September 2023, in the case of Gauvin-Fornis v France. The applicants were born in the 1980s in France through assisted reproduction with anonymous donations of gametes from third parties. They alleged that the fact of not being able to access information about the donors was a violation of their right to private life (Article 8 of the European Convention on Human Rights) and that they suffered discrimination compared to other children. The ECHR concluded that there was no violation of the right to private life, since the respondent State complied with its legal obligation (under French national law) to respect the anonymity of the donors. The ECtHR considered that this national law was a legislative decision taken after public consultation and reflection processes. Furthermore, it considered that the State acted within its margin of appreciation by not eliminating the anonymity of donors immediately, since there was no clear consensus on access to this information and that the State, in its action, where it did allow access to necessary medical information, adequately balanced the interests at stake. However, this doctrine, with the advancement of the debate, could change in the future, as has happened with other issues.
However, with regard to the United Nations Committee on the Rights of the Child, an interesting path that has not yet been explored could be opened up, alleging a possible violation of Article 8 of the Convention on the Rights of the Child. Although this Committee issues recommendations, there are legal avenues to demand their compliance at the national level. Furthermore, this option should be explored in order to develop a strategic litigation that could end up leading to a regulatory change at the state level that abolishes anonymity.