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German court decision raises more questions than answers

9 February 2015
Appeared in BioNews 789

On 28 January this year the German Federal Court of Justice decided in a landmark court case that donor conceived people have the right to access the identity of their donor - independent of the offspring's age.

The decision is the outcome of decades of legal challenges over donor anonymity in Germany.

Since 1989, there have been several court cases whose outcomes indicated that children have a right to access their genetic origin. And in 2013, a German higher court granted this right explicitly to a young woman conceived by donor insemination for the first time.

In January this year, the Federal Court of Justice confirmed this right and, unexpectedly, also ruled that the right to access the donor's identity is independent of the age of the child.

In this most recent court case, the parents of two children aged 12 and 17, appealed to the Court of Justice after the clinic refused to provide the donor's identity. At the time of treatment, the parents had signed a document with the clinic indicating they had no interest in the donor's identity. However, as the children grew older, they wanted to retrieve this information.

The clinic did not provide the donor's identity as they had granted the donor anonymity unless a court decision overruled this. The parents therefore appealed to the State Court in Hannover, which rejected the appeal saying that disclosure of identity would only be possible after the children turned 16 - the age at which adopted children in Germany can access information on their biological origins. The parents then took the case to the Federal Court of Justice.

The subsequent decision of the Court of Justice is a good basis to prepare further legal and logistical changes. At the same time, however, it also indicates the challenges ahead.

For example, confusion has already appeared over the effect of the recent ruling on legal paternity. In Germany, although parents cannot contest paternity once they have both agreed to donor insemination, the child can. So far in Germany there has never been a case in which a child has contested the legal paternity of his or her father after donor insemination. And most, if not all, court cases initiated by donor conceived people in other countries have concerned access to the identity of the donor, not the desire for the donor to become a legal parent.

Nevertheless, in media contributions last week, there were several misleading articles indicating, or at least suggesting, that donors now run a greater risk of becoming the legal parent. This is simply not correct as family law has not been changed. The risk remains the same and no donor recruited through the medical system in Germany has ever become a legal parent.

At the same time, sperm donors still do not enjoy full legal protection in Germany. For example, in the case of lesbian parents who are not in a legal relationship and who, therefore, cannot adopt a child conceived through donor insemination, as well as in the case of single mothers, the donor runs the risk of legal paternity with all consequences including visitation rights for the child. Donors should enjoy full legal protection independent from the sexual orientation or the civil status of the recipient women.

Another issue is that there was no statement by the court regarding the fact that, in the past, donors were ensured anonymity. This decision raises the question of whether donors will become identifiable even though they donated at a time when doctors typically informed them that they would remain anonymous. This seems tantamount to a retrospective removal of anonymity.

Several other questions remain:

  • If young children can access their donor's anonymity, what happens in those cases where children are not yet aware of their donor conception - can parents claim rights to the donor's identity?
  • If young children would like to meet the donor, what are helpful procedures to ensure that this contact is a positive experience for everybody involved?
  • It is interesting that prior to this court case, adopted children had more rights enshrined in legislation than donor-conceived children. Now, children conceived by donor insemination seem to have more rights than adopted children who still have to wait until they are 16 to access information about their origins. What does this mean for adopted children?

Germany is lacking a comprehensive legal framework for donor insemination and, once again, this court decision has only highlighted the challenges this presents. German legislators now have the task to tackle this and to initiate legal changes that respect the rights and needs of every party involved in donor insemination.

18 February 2013 - by Dr Petra Thorn 
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. Further steps must be taken in order to provide a comprehensive legal framework....
11 February 2013 - by Jessica Ware 
A regional appeals court in Hamm, Germany has ruled that a 22-year-old woman conceived via an anonymous sperm donor has a legal right to find out the identity of her biological father...
Some remarks to the legal assessments in this article ( - 10/02/2015)
As a trained lawyer and member of the German association of donor offspring Spenderkinder, I agree that Germany is lacking a comprehensive legal framework for donor conception, in particular one that protects the rights of donor offspring. I take, however, several objections to the statements in this article.

It is not correct that no German donor conceived person has contested the legal paternity of his or her legal father. At least five members of Spenderkinder had their previous legal father removed from their birth records, mostly because they had no connection to him because he left the family early and/or was abusive. They have no legal father now, but do not wish their donor to become their legal parent either.

It is not correct either  that there was no statement by the Federal Court of Justice on donor anonymity. The Court's press statement ( explicitly says that, according to the doctor's guidelines on artificial reproduction, the doctor was not allowed to promise anonymity to the donor. It also elaborates that if the donor was promised anonymity nevertheless, his interests to remain anonymous had to be weighed against the child's interest, and that the child's interests in knowing about his or her ancestry would normally prevail. Parents will be able to claim the right to their donor's identity even if the children are not yet aware of their donor conception, if they need the information to provide it to their children.  

The article wrongfully indicates that the court's decision seemed tantamount to a retrospective removal of anonymity. This presupposes, however, that there was a legal ground for granting anonymity to sperm donors. That was not the case in Germany. German law has known the right of an individual to receive information about his or her ancestry since the 1960s. Also, it is a general principle of civil law that two parties (doctor and parents) cannot enter into valid contracts on a third party (the child) waiving their rights (there is no "Vertrag zu Lasten Dritter"). Already in a statement lifting the general ban on sperm donation in 1970, the doctor's association warned doctors of the legal uncertainties regarding sperm donation, because a donor conceived child was able to appeal the legal fatherhood of its social/legal father and claim information about the donor from the respective doctor. Therefore, the doctors association explicitly advised that donations could not be provided by promising anonymity.

It is unfortunately rather far-fetched that donor conceived persons have now more rights than adopted children only because they can claim information about their genetic father before the reach the age of 16. Adoptees are not dependent on their social parents to receive information that they are adopted, because this fact and their birth parents are stated in their extended birth records. This leads to a very high awareness rate amongst adoptees, because it is very likely that they will find our at some point in their life that their parents are not their birth parents. Also, to the benefit of the whole family, parents wishing to adopt receive mandatory counselling before and after the adoption. This is not the case for donor conception, although it is equally challenging.
Glad for clarification from the previous commentator ( - 15/02/2015)
The commentary by the lawyer above who has one of these estranged parents who donated their gametes was important clarification.

It's worth noting though that comparing the rights of a gamete donor's offspring to the rights of someone who was given up for adoption is not so important as to compare both of them to the rights that the rest of the population has with their parents of the biological type and their maternal and paternal relatives and in the reverse their relatives rights to information about them as well.  Why on earth would the offspring of these estranged parents want to strive for the pitiful and unfair treatment adopted person's are subjected to legally which is not on par with the rest of the population.  Everyone's legal rights and expectations with regard to legal kinship in their own maternal and paternal family and with regard to care and support of their bio parents out to be identical with no exceptions.  Then if the parent''s authority is terminated for just cause other people can go through the normal process of background checking and checking that they did not request or entice the bio parent to relinquish.  The offspring of gamete donors are denied due process of their day in court.  That is the only worthy comparison to whatever rights that adopted people have they should have otherwise both categories are terribly mistreated.  Both need to be equalized with everyone else.

Why would donating a gamete exempt anyone from parental responsibility such that they could just make kids and abandon them the way they do?  No other bio parent has a free pass to just not take care of their offspring because they 'did not intend to be a parent' or because someone else 'intended to be their parent'.  

Gamete donors don't reproduce with people who are infertile obviously, they reproduce with others like themselves or with perfectly healthy individuals that the doctor says he is treating for infertility problems that don't exist.  If the customer does have infertility problems he is not treating them by arranging for their spouse to have a child with an outsider that agreed to abandon their child when and if born, or arranging for two outsiders to have a child and abandon him or her when and if born.  It is not within the practice of medicine it is a trafficking effort that is completed only if the gamete donor keeps their word and does not seek their parental status over their offspring when born.  This then makes way for the customer to raise the child alone and for the customer and any romantic partner to write themselves in on the birth certificate as parents skipping the adoption process if they are not a biological parent.  That short cut use to be referred to as black market.
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