Publication details
Anonymous gamete donation as a human rights conflict
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| Year of publication | 2024 |
| Type | Appeared in Conference without Proceedings |
| Citation | |
| Description | My research focuses on the human rights aspects of anonymous gamete donation as part of assisted reproduction. The topic is discussed in relation to the conflict between the right of a child or a donor-conceived person in general to know his or her biological origin and the donor's right to a private life, the right of social parents to raise their child undisturbed, and the public interest in having enough donors to carry out fertility treatment. The aim of the research is to explore options for resolving this human rights conflict, taking into account the requirement of proportionality. I ask whether the enactment of anonymity of gamete donation can be considered an impermissible violation of the right of a donor-conceived person to know his or her biological origins. I then consider how a fair balance can be achieved in balancing the conflicting interests. The novelty of the research lies in the comprehensive approach to the topic and the formulation of concrete starting points for the creation or change of legislation in the given area. In other words, the research does not only focus on describing and comparing different legislative approaches within the Council of Europe. On the contrary, it provides a conceptual solution to the problem on the basis of an analysis of international treaties and the opinions of competent bodies. In this context, attention is paid to the Convention on the Rights of the Child (CRC), in which the right to know one's biological origins is explicitly enshrined and, in relation to the principle of the best interests of the child, interpreted in favour of abolishing anonymous gamete donation. However, this international treaty applies only to persons with the status of a child, without allowing for the filing of a complaint leading to a binding and enforceable judgment. The right of a donor-conceived person to know his or her biological origin is therefore realistically protected through Article 8 of the European Convention on Human Rights (ECHR), as it falls under the broader category of the right to identity and the right to private life. It is even an integral part of the right in question, leading to its enhanced protection and limiting the margin of appreciation of the Member States in establishing rules in the field. The exception is where it is a sensitive ethical issue that is not uniformly regulated in the member states of the Council of Europe. In such a case, a wide margin of appreciation should be given to reflect national political and cultural particularities. The ECtHR came to the same conclusion in relation to anonymous gamete donation (the judgment in Gauvin-Fournis and Silliau v France of 7 September 2023), finding that its enactment in strict form did not violate Article 8 of the ECHR. In my conclusions, I am critical of the ECtHR's position because it ignores the importance of the right to identity and the best interests of the child, who is the most vulnerable. Furthermore, it does not reflect the European trend towards the abolition of anonymity, which, due to the use of genetic genealogy methods, can no longer be guaranteed. Studies then show that the abolition of anonymity does not result in a long-term decline in donors who may agree to or actively seek declassification of their identity. It is illogical that the State should not allow anonymity to be broken in such a situation. Even if this is not the case, the essence of the right of a donor-conceived person to know his or her biological origin cannot be completely ignored. Therefore, if there is no political will or consensus to break anonymity, it is appropriate to consider at least unconditional disclosure of a wide range of non-identifying information about the donor, which is a less invasive interference with his or her right to privacy, while at the same time providing the donor-conceived person with information that enables the formation of a personal identity. |
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