For decades, Germany has been nationally and internationally regarded as a country with little regulation regarding third-party reproduction: treatment with donor sperm and donor embryos (egg donation is forbidden). Recently however, the German government has passed a law that will regulate the right of offspring conceived by donor insemination (DI) to access their biological origins.
In Germany, as in many countries, it has been difficult for donor conceived people to obtain information about their donor from clinics. In many cases, children conceived through sperm donation had to take legal action, as legislation clarifying the documentation period was only introduced in 2007. Prior to this, there was no legislation mandating a minimum period of documentation storage, and many clinics only kept records for 10 years.
In 2018, the Sperm Donor Register Act (SaRegG - Samenspenderregistergesetz) will be introduced. As a result of this Act, clinics will have to ensure that the data about the donor and the mother is supplied to a central register and documented for a minimum of 110 years.
Alongside SaRegG, the German Civil Code will be adapted. In §1600 d (4) of the Civil Code, it will be regulated that in the case of medically assisted donor insemination, the 'sperm donor cannot become the legal father of the resulting child'. This had been an area in which Germany's position differed from many other nations: in the regulatory vacuum, the sperm donor faced the risk of becoming a legal parent of the child conceived with his donated semen.
In other countries, the exclusion of the donor as a legal parent may have been considered necessary so that men are willing to donate. In Germany, this important step was long disputed. Many constitutional concerns were expressed that these offspring could be – in contrast to other children – hindered in determining their genitor as their legal father.
The new Act is in itself a major step forward. However, some aspects can also be regarded as particularly progressive from an international perspective:
No minimum age to access data
While donor offspring have a right to access information about their donor from 16 years of age, the parents as their legal guardians can access this information any time earlier – theoretically from immediately after birth.
This decision was reinforced by a ruling of the German Federal Supreme Court in 2015, in which parents were granted this right as representatives of their minor children (BGH, 28.1.2015, XII ZR 201/13)
Supplementary information for the offspring
In addition to donor identity, the sperm donor is invited to leave supplemental information for the child. The scope of his information was not limited by the legislature and can include a short bio, more detailed information about his motivation to donate, a photo or any other information the donor chooses to provide.
Retrospective data regulation for offspring conceived prior to the Act
The central register is only for data relating to offspring conceived after the new Act comes into force. For reasons of data protection, it was considered impossible to include data collected before. However, as a result of controversial debates during the last few weeks, the Act now stipulates that all data prior to 2018 will have to be documented by the clinics for an equally long period (110 years). Thus, any destruction of data currently available is prohibited.
The influence and the ongoing oral and written submissions of German lobby associations such as the DI-NETZ, BKiD and Spenderkinder (an organisation of adult offspring), have played a significant role in these debates.
There are some issues that we believe will require more debate and convincing, and will hopefully be addressed once the Act has been adopted. These include:
An additional voluntary register for contacting donor siblings.
The inclusion of data resulting from embryo donation.
The provision of psychosocial support prior to and post contacting the donor and/or half-siblings.
Limiting the number of offspring or families per donor.
The implementation of ongoing research in this area, including an evaluation of the donor data for Germany. Currently, there is no knowledge how many cases of DI are carried out in Germany, nor how many children are conceived this way abroad.
It should be possible for clinics to transfer their data to the central register once donors and families have consented, to provide a unified path to all offspring seeking information.
We have worked in the field of Assisted Reproductive Technologies in Germany for over 15 years. Although this Act is not as comprehensive as it could be, it is with great joy and relief that we can finally welcome legislation clarifying the most essential aspects of donor insemination.