The Constitutional Court recently ruled that the legal provisions on professional secrecy and anonymity of sperm donors should no longer prevent a donor child from obtaining any identifying or non-identifying information from the fertility clinic.
In this article, we briefly discuss the implications of this ruling.
1. The underlying facts
A donor child asked the fertility clinic where the mother underwent medically assisted reproductive treatment for a copy of the mother's medical file. With this file, the donor child can find out information about the donor, and thus regarding her origin and identity.
The fertility clinic refused to transfer the mother's file, upon which the donor child and the mother sued the clinic. The court ruled that the mother had no legal interest in a claim seeking to obtain paternity information about the daughter and that the daughter's claim to obtain paternity information was barred by the legal provisions regarding the fertility clinic’s professional secrecy and the anonymity of sperm donors. The court, however, decided to refer the issue, which in essence is the extent of access of the donor child to paternity information, to the Constitutional Court.
2. The Constitutional Court finds that the current legislation is no longer relevant
The Constitutional Court considers that the current legal provisions, which essentially give absolute priority to the interests of the donor without taking into account the interests of the donor child, are no longer in line with modern times.
The Constitutional Court therefore instructs the legislature to draft a balanced regulation that takes into account the interests not only of the donor, but also of the donor child, by June 30, 2027 at the latest. However, the effects of the old regulations, i.e. the absolute anonymity of donors, will have to be maintained until the new regulation enters into force.
Whether such a new regulation will also pass the test of the Constitutional Court remains to be seen.
If the legislator does not draft a new regulation, fertility clinics will no longer be able to hide behind provisions on professional secrecy and anonymity of sperm donors after June 30, 2027, but will have to take the Constitutional Court's ruling into account. Conversely, donor children will also be able to invoke the ruling to their benefit.
3. The vision of the Constitutional Court follows a trend that takes into account the rights of the donor child
The current view of the Constitutional Court fits into a more general trend that (in our opinion, rightly) takes into account the interests of the donor child.
The Tijdschrift voor Familierecht (Journal of Family Law) recently published an article commenting three judgments and rulings on medically assisted reproduction and the right to paternity information under the unmistakable title ‘Mirror, mirror on the wall, who is putting an end to donor anonymity for us all.’ This article also discusses the judgment of the Family Court of West Flanders, division of Bruges of June 23, 2023. In this case, our firm acted for a donor child who found a potential biological father by using commercial DNA databases and wanted to obtain confirmation of her search results. The court then ruled, inter alia by taking into account the same elements as the Constitutional Court in the above-referred ruling, that the presumed donor had to undergo forced DNA testing.
4. What does this mean for anonymous donorship?
Anonymous donorship is at risk. Genetic anonymity is an illusion. The question can therefore be asked whether donor children in Belgium will have to wait for a new regulation from the legislator to obtain paternity information on a donor. Considering the existence of commercial DNA databases, the fact that the results of commercial DNA tests can be considered as sufficient motive for a court decision and that the right to paternity information is protected by Article 8 of the European Convention on Human Rights, donor children currently have already a solid basis for a claim.
This does not mean that no efforts must be expected from the legislator. To preserve legal certainty, it would be wise for the legislator to adopt, by June 30, 2027, workable legislation adapted to modern times, that offers donor children what they are entitled to, namely genetic security.
