On 6 February 2013, the Higher Regional Court in Hamm, Germany, granted a 21-year-old donor-conceived woman the right to access the identity of her donor.
Sarah P was conceived at a time when it was common medical practice in Germany to destroy the records revealing the donor's and the recipient's identity after a period of 10 years. However, the German Federal Court of Justice has repeatedly granted adults the right to be informed about their biological fathers' identity – although these cases did not involve donor insemination but situations such as where children were born out of wedlock.
The dilemma was that, on the one hand, the documents could be lawfully destroyed and the donor would remain anonymous. On the other hand, however, in comparable situations offspring have been granted the right to access this kind of information. The regional court ruling clearly extended such rights to offspring where his or her conception was by donor insemination, taking priority over the donor's interest to remain anonymous. The court also stipulated that this ruling could not be contested.
Although this is a first and important step towards more legal certainty for families created through donor insemination in Germany, the legal situation remains unsatisfactory. In 2007, the Transplantation Act and the Tissue Act stipulated that documents regarding the recipient and the donor must be maintained for a minimum of 30 years. This also means that donors must be informed that anonymity cannot be guaranteed. However, further steps must be taken in order to provide a comprehensive legal framework.
Legislation is required in order to grant donor-conceived people the right to access their donor's identity. Leaving it to the courts is not sufficient; especially as the rights of people conceived between 1997 and 2007 are unclear. Furthermore, in future cases other courts may decide differently.
The right to contest paternity granted to donor-conceived people living with heterosexual parents during the two years following disclosure must be abolished. After all, research and clinical experience indicate that offspring are interested in and curious about the donor, but not necessarily in the donor being granted legal parenthood. Interestingly, the German legal system does not provide the possibility to contest maternity after oocyte donation.
Comprehensive exemption of all legal (and thus financial) responsibilities of donors, independent from the sexual orientation or civil status of recipients, is necessary. Currently, donors run a relatively significant risk of legal paternity if their sperm is used for lesbian couples not in civil relationships and where, as a consequence, the social mother cannot adopt the child. They may also be considered the legal father when donating to single women. The abolition of donor anonymity must go hand in hand with protection from all financial responsibility.
A central register collecting all data about donor insemination (including the donor's identity, the recipient's identity, and details of the fertility clinic) should be established in order to avoid the risk of men donating in several clinics. Uniform procedures for establishing contact between offspring and donors based on knowledge and experience in the area of adoption and from other jurisdictions are also needed. Sensitive information should not be left with clinics, which may handle contact requests by donor-conceived people very differently. It will also be vital to maintain these records for much longer than the current minimum of 30 years in order to not disadvantage those who only become interested in this information later in life.
We have taken an important step in the right direction; but it is only one step. There are many issues that remain unclear and unregulated. Given the unique structure of German family law, it will not be possible to simply copy other jurisdictions. Germany will have to develop its own legal framework to ensure that all legal implications of donor insemination are clarified for all parties involved, including the professionals, the donors, the families and above all the donor-conceived.
Donor insemination has become one option among many others to build a family. It should enjoy as much legal protection and acceptance by society as any other method of family building.