Print
See related documents
Committee Opinion | Doc. 14854 | 02 April 2019
Anonymous donation of sperm and oocytes: balancing the rights of parents, donors and children
Committee on Legal Affairs and Human Rights
A. Conclusions of the committee
(open)1. The Committee on Legal Affairs
and Human Rights congratulates the rapporteur of the Committee on Social
Affairs, Health and Sustainable Development, Ms Petra De Sutter
(Belgium, SOC), for her comprehensive report and, on the whole,
endorses the draft recommendation which has been proposed.
2. Sperm and oocyte donation is a topical and controversial issue.
In the absence of common European standards, the various national
legal frameworks regulate this issue in very different ways or sometimes
not at all. It is also an area in which technological and scientific
progress is being made at an ever-increasing pace. Without going
into detail on the differences between national laws, the committee
nevertheless wishes to support the rapporteur’s proposal to abolish,
as far as possible, the anonymity of gamete donors, in view of the right
of persons conceived by medically assisted procreation (MAP) to
know their origins, a right which is recognised as an integral part
of the right to private life guaranteed under Article 8 of the European
Convention on Human Rights (ETS No. 5, “the Convention”). In addition,
the committee shares the rapporteur’s view that maintaining anonymity
has become almost impossible given the progress made in genetic
technologies.
3. However, the committee wishes to propose a number of amendments
in order to further strengthen the draft recommendation with regard
to the terminology used and certain legal aspects.
B. Proposed amendments
(open)Amendment A (to the draft recommendation)
In paragraph 2, first sentence, after the word “including” add “the interpretation given to”.
Amendment B (to the draft recommendation)
In paragraph 2, second sentence, after the words “This right”, add “, which is an integral part of the right to respect for private life,”.
Amendment C (to the draft recommendation)
At the beginning of paragraph 5, insert the following text: “The Parliamentary Assembly notes that the legislation and practices of Council of Europe member States in the field of medically assisted procreation vary significantly. Nonetheless,”.
Amendment D (to the draft recommendation)
At the beginning of paragraph 7.1, insert the words “as far as possible”.
C. Explanatory memorandum by Mr Pierre-Alain Fridez, rapporteur for opinion
(open)1. I cannot but congratulate Ms De
Sutter on her report, which addresses the very controversial issue
of the anonymity of sperm and oocyte donors. As the rapporteur points
out, 
donor anonymity is no longer guaranteed
in practice, given the advances in genetic technologies, and individuals
wishing to discover their ascendants have no difficulty in accessing
their genetic data. These issues must therefore be regulated in
order to avoid any possible abuses in the development of these technologies,
and that is why I fully support the conclusions contained in Ms De
Sutter’s report.
donor anonymity is no longer guaranteed
in practice, given the advances in genetic technologies, and individuals
wishing to discover their ascendants have no difficulty in accessing
their genetic data. These issues must therefore be regulated in
order to avoid any possible abuses in the development of these technologies,
and that is why I fully support the conclusions contained in Ms De
Sutter’s report.2. Nevertheless, I would like to propose some amendments to the
draft recommendation in order to add some terminological clarifications
and to highlight the diversity of national legislation in the field
of medically assisted procreation (MAP). In particular, I would
like to point out that, as demonstrated by the replies provided by
the majority of Council of Europe member States to the questionnaire
drawn up by the Council of Europe’s Bioethics Committee (DH-BIO)
on access to MAP, on the right to know about their origin for children
born after MAP and on surrogacy, published in January 2017, there are significant differences
in Council of Europe member States with regard to the regulations
and practices in the field of MAP and access to this procedure. Some countries (for
example Azerbaijan, the Czech Republic, Malta, Poland, Serbia and
the Slovak Republic) do not even have a law specifically dealing
with the subject. Among those States that replied to the questionnaire,
20 or so reported that MAP was reserved solely for heterosexual
couples. Other specific criteria for access to MAP also varied from
country to country. While sperm donation is authorised in most member States,
some countries prohibit the donation of oocytes. In addition, some
States (for example France) prohibit double gamete donation. With
regard to the anonymity of gamete donations, 19 countries replied
that it was possible to learn the identity of the donor, while 14
replied that it was not always possible. There is therefore no European
consensus on this issue.
there are significant differences
in Council of Europe member States with regard to the regulations
and practices in the field of MAP and access to this procedure. Some countries (for
example Azerbaijan, the Czech Republic, Malta, Poland, Serbia and
the Slovak Republic) do not even have a law specifically dealing
with the subject. Among those States that replied to the questionnaire,
20 or so reported that MAP was reserved solely for heterosexual
couples. Other specific criteria for access to MAP also varied from
country to country. While sperm donation is authorised in most member States,
some countries prohibit the donation of oocytes. In addition, some
States (for example France) prohibit double gamete donation. With
regard to the anonymity of gamete donations, 19 countries replied
that it was possible to learn the identity of the donor, while 14
replied that it was not always possible. There is therefore no European
consensus on this issue.3. The European Court of Human Rights (“the Court”) has on a
number of occasions had the opportunity to rule on MAP-related issues,
but its case law in this area is still quite limited. In its S.H. and Others v. Austria judgment,
the Court concluded that there was no European consensus on recourse
to external gametes. In this
case, the applicants, two Austrian couples, wished to use in vitro fertilisation (IVF) with
sperm donation for the first applicant and oocyte donation for the
second, whereas Austrian law prohibited sperm donation for IVF treatment
and prohibited oocyte donation in general. The Grand Chamber, which
overturned the Chamber’s judgment, noted that there was a “clear
trend in the legislation of the Council of Europe member States
towards allowing gamete donation for the purpose of in vitro fertilisation, which reflects
an emerging European consensus”. However, that consensus reflected
“a stage of development within a particularly dynamic field of law”
rather than “long-standing principles established in the law of
the member States”; accordingly, the Court held that this did not
decisively narrow the margin of appreciation of the State and
found that there had been no violation of Article 8 of the Convention.
The issue of access to MAP for female couples was recently referred to
the Court in a case against France, but it did not rule on the merits,
as the application was found inadmissible for non-exhaustion of
domestic remedies.
In its S.H. and Others v. Austria judgment,
the Court concluded that there was no European consensus on recourse
to external gametes. In this
case, the applicants, two Austrian couples, wished to use in vitro fertilisation (IVF) with
sperm donation for the first applicant and oocyte donation for the
second, whereas Austrian law prohibited sperm donation for IVF treatment
and prohibited oocyte donation in general. The Grand Chamber, which
overturned the Chamber’s judgment, noted that there was a “clear
trend in the legislation of the Council of Europe member States
towards allowing gamete donation for the purpose of in vitro fertilisation, which reflects
an emerging European consensus”. However, that consensus reflected
“a stage of development within a particularly dynamic field of law”
rather than “long-standing principles established in the law of
the member States”; accordingly, the Court held that this did not
decisively narrow the margin of appreciation of the State and
found that there had been no violation of Article 8 of the Convention.
The issue of access to MAP for female couples was recently referred to
the Court in a case against France, but it did not rule on the merits,
as the application was found inadmissible for non-exhaustion of
domestic remedies. 4. It should be noted that the Court is currently examining two
cases against France concerning the authorities’ refusal to provide
information on the origins of the conception of the applicants born
as a result of artificial insemination from donated sperm. The applicants
complain under Article 8 (right to respect for private life) and
Article 14 (prohibition of discrimination) of the Convention insofar
as they have been denied information on the identity of the donor. The
outcome of these applications will undoubtedly be decisive for assessing
the issue in question or for the possible drawing up of European
rules in this field.
The
outcome of these applications will undoubtedly be decisive for assessing
the issue in question or for the possible drawing up of European
rules in this field.5. It should be noted that for more than 15 years, under Article
8 of the Convention, the Court has ruled in favour of a right to
know one’s origins, including the identity of one’s ascendants,
in particular in cases concerning the challenging or recognition
of paternity, although it has
always sought to ascertain whether “a fair balance has been struck
between the competing interests” of the case. In the Odièvre
v. France judgment concerning anonymous childbirth, the
Court emphasised that birth, and in particular the circumstances
under which a child is born, forms part of a child’s, and subsequently
the adult’s, private life. However, it did not find in favour of the
applicant, considering that the latter had been given access to
non-identifying information about her mother and her biological
family (non-violation of Article 8 of the Convention). In the Godelli v. Italy case, concerning
the secrecy of birth and the impossibility for the applicant, abandoned
by her mother, to obtain non-identifying information about her natural
family, the Court found a violation of Article 8 of the Convention. However,
it did not come to the same conclusion in the Mandet
v. France case, in which the applicants (the mother,
her husband and the child) complained that the French courts had
annulled recognition of paternity at the request of the child’s
biological father. The Court held that the best interests of the
child, who continued to live with the Mandet family, were first
and foremost to know his origins.
although it has
always sought to ascertain whether “a fair balance has been struck
between the competing interests” of the case. In the Odièvre
v. France judgment concerning anonymous childbirth, the
Court emphasised that birth, and in particular the circumstances
under which a child is born, forms part of a child’s, and subsequently
the adult’s, private life. However, it did not find in favour of the
applicant, considering that the latter had been given access to
non-identifying information about her mother and her biological
family (non-violation of Article 8 of the Convention). In the Godelli v. Italy case, concerning
the secrecy of birth and the impossibility for the applicant, abandoned
by her mother, to obtain non-identifying information about her natural
family, the Court found a violation of Article 8 of the Convention. However,
it did not come to the same conclusion in the Mandet
v. France case, in which the applicants (the mother,
her husband and the child) complained that the French courts had
annulled recognition of paternity at the request of the child’s
biological father. The Court held that the best interests of the
child, who continued to live with the Mandet family, were first
and foremost to know his origins. 6. In subsequent judgments on surrogacy, the Court has also examined
the question of the identity of children born as a result of such
practice. In the Mennesson v. France and Labassée v. France cases, which concerned
the French authorities’ refusal to enter in the civil register children
born to American surrogate mothers and French biological fathers
(the applicants), the Court criticised this practice as violating
these children’s right to an identity. In the Court’s view, by obstructing
both the recognition and the establishment in domestic law of their
parent-child relationship with their biological father, France had
failed to respect these children’s right to private life (violations
of Article 8 of the Convention). It
is also interesting to note that in a more recent case, Paradiso and Campanelli v. Italy,
concerning the placement in care by the Italian social services
of a nine-month-old child born in Russia following gestational surrogacy
arranged by the applicant couple, the Grand Chamber annulled the
Chamber’s judgment and found in favour of the Italian authorities.
It held that, given the absence of a biological link between the
child and the applicants (unlike the applicants in the Mennesson v. France and Labassée v. France cases) and the
short duration of their relationship, the decision of the Italian
authorities was not disproportionate and did not give rise to a
violation of Article 8 of the Convention.
It
is also interesting to note that in a more recent case, Paradiso and Campanelli v. Italy,
concerning the placement in care by the Italian social services
of a nine-month-old child born in Russia following gestational surrogacy
arranged by the applicant couple, the Grand Chamber annulled the
Chamber’s judgment and found in favour of the Italian authorities.
It held that, given the absence of a biological link between the
child and the applicants (unlike the applicants in the Mennesson v. France and Labassée v. France cases) and the
short duration of their relationship, the decision of the Italian
authorities was not disproportionate and did not give rise to a
violation of Article 8 of the Convention. 7. It can therefore be seen that the Court attaches paramount
importance to the biological link between parents and children.
The right to know one’s biological origins and to have them recognised
is considered by the Court as an integral part of the right to respect
for private life. It would therefore appear that lifting the anonymity
of gamete donors would not run counter to the requirements deriving
from the case law of the Court with regard to Article 8 of the Convention.
8. It should also be borne in mind that Article 7.1 of the United
Nations Convention on the Rights of the Child (UNCRC) stipulates
that children have the right to know their parents “as far as possible”.
In addition, “States Parties undertake to respect the right of the
child to preserve his or her identity, … name and family relations,
as recognised by law, without unlawful interference” (Article 8.1
of the UNCRC).
9. Furthermore, in a study published by the Council of Europe’s
Bioethics Committee in November 2017, researchers at the University
of Leiden (Netherlands) made the point that gamete donation was
not regulated either by the Convention on Human Rights and Biomedicine)
(ETS No. 164, “Oviedo Convention”) or by the Additional Protocol
on Transplantation of Organs and Tissues of Human Origin (ETS No.
186). In their view, this was an issue that required greater attention,
as the right to an identity was protected by the UNCRC and Article 8
of the European Convention on Human Rights. In view of advances
in reproductive technologies, MAP should be more closely regulated
by States. It would be helpful to provide States with recommendations
and good practices on legal and other measures to ensure that children
can receive viable information about their origin and the circumstances
of their birth. The report by Ms De Sutter
is therefore in line with this approach.
The report by Ms De Sutter
is therefore in line with this approach.1. Amendment A
Explanatory note
The purpose of this amendment is to highlight the fact that it is the interpretation given to the United Nations Convention on the Rights of the Child that has evolved and not the Convention itself (see in this respect the explanations contained in Ms De Sutter’s report in paragraph 7, see footnote 7). This clarification is all the more advisable as paragraph 2 of the draft recommendation refers to the case law of the Court (which has indeed evolved in order to respond to new challenges in the field of bioethics), but not to the European Convention on Human Rights.
2. Amendment B
Explanatory note
The purpose of the amendment is to highlight the fact that the right to recognition of one’s origins is an integral part of the right to respect for private life (see in particular the case law of the Court relating to Article 8 of the Convention, paragraphs 5-6 above).
3. Amendment C
Explanatory note
The purpose of this amendment is to emphasise that, with regard to gamete donation, legislation and practices vary from one State to another (see paragraph 2 above). Accordingly, the Assembly should take these differences into account before making specific recommendations.
4. Amendment D
Explanatory note
The aim of this amendment is to slightly soften the categorical wording of the first sentence of this sub-paragraph, particularly in view of the scope of Article 7.1 of the UNCRC, which stipulates that the child has the right to know his or her parents “as far as possible”. In addition, the right to private life, to which the right to know one’s origins is linked, is not an absolute right and may be restricted under certain conditions (see Article 8.2 of the Convention). Lastly, it is also necessary to take into account the disparities that exist between each country’s national legislation and the latter’s specific characteristics.