Anonymity of the sperm donor

On March 24, 2021, the Gelderland court ruled on the disclosure of the identity of a sperm donor (ECLI:NL:RBGEL:2021:1388)  In the 1990s, the donor indicated during the sperm donation that his data could be shared with the donor children, but later retracted this. The court ruled that a balance between the interests of mother and daughter on the one hand and those of the donor on the other hand cannot be made. The hospital is therefore not obliged to disclose the donor's data to the daughter.

History

In 1948, the first artificial insemination with donor sperm took place in the Netherlands. Because the involvement of a third party (the donor) in the partner relationship was linked to marital infidelity and infertility was still an undiscussed subject, sperm donation was initially shrouded in secrecy and taboo. Donations were therefore only anonymous and there was no legal framework for the donor and the father.

In the 1980s, moral objections diminished, lesbian couples gained access to fertility treatments, and donor sperm was frozen for the first time. As a result, sperm donation increased, with thousands of men donating sperm.

From the early 1990s, a sperm donor could also choose to be a 'known' donor. A distinction was therefore made between a so-called A-donor who wanted to remain anonymous and a B-donor who gave permission to provide his data to the donor child from the age of sixteen. B-donors were free to indicate later that they wanted to remain anonymous.

Due to the growing number of donors, the CBO guideline was introduced in 1992. The guideline prescribed a maximum of 25 donor children per donor.

Precise numbers of donors and donor children are missing because these data were not collected centrally before 2004. According to the Fiom foundation, an estimated 40,000 donor children were born before 2004. Donors who donated before 2004 and donor children who were conceived at that time and for whom no data is known, can use the Fiom KID-DNA Database to search for relatives.

Artificial Insemination Donor Data Act

Since 1 June 2004, the Artificial Insemination Donor Data Act (Wdkb) has been in effect. The starting point of this law is that every child has the right to know about his or her descent. As a result, it is no longer possible to donate sperm anonymously. The Wdkb does not apply retroactively.

The law provides for the obligation to collect the ancestry data (medical data, physical and social data and personal data) of the donors in a central registration system. This system is managed by the Foundation Donor Data Artificial Insemination (SDKB). The central register does not contain direct figures on births of donor children. The register does provide information on the number of treatments with donor sperm, donor eggs and donor embryos. Only the treatments that result in a pregnancy are registered. In 2020, the central register – which has been maintained since 2004 – contained almost 13,000 registrations of treatments with donor sperm cells.

The SDKB stores donor data for eighty years. Donor children may request the following data from a donor. The following rules apply per age group:

• Children under the age of 12 are not allowed to request data. Their Parents may request physical and social data. Physical data of the donor are for example posture, hair color or eye color. Examples of social donor data are education and living situation.
• Children aged 12 to 15 years may request the physical and social donor data themselves.
• From the age of 16, a child may ask for the donor's first name, last name, date of birth, address and place of residence. At the beginning of 2021, the first donor children born after the introduction of the Wdkb will reach the age of 16.

Donors who donate after 1 June 2004 may object to the provision of their data in the event of compelling interests. A balance will then be struck between the donor's interest (to remain anonymous) and the child's interest (to obtain information on descent).

The transitional provision of Article 12, paragraph 3, Wdkb states that the data of A-donors and B-donors may not be provided against their will.

Lawsuits

Donor K43 (RB. Arnhem 24 March 2021, ECLI:NL:RBGEL:2021:1388)

Daughter (claimant) was born in 1998 after IVF treatment in the hospital. At that time, the mother explicitly chose a B-donor: a known donor, who agreed to provide his personal data to the child later. The information folder about the sperm donation used in 1997 states, among other things:

“Known donors are donors who are willing to give up their anonymity for the benefit of the child.”

“In the hospital it is assumed that this is in the best interest of the child. The child then always has the possibility to obtain information about the donor later.”

When the daughter turned 16 in 2017, she requested the data from the hospital. However, she did not receive it. Without the daughter or the parents knowing, donor 'K34' went back on his earlier promise to remain anonymous. At some point after the sperm donation, the donor stated at the hospital that he wanted to remain anonymous after all. The transitional provision of article 12 WDKB offers B donors this space, by stipulating that data from B donors – who donated before 2004 – may only be provided with the donor's consent.

Daughter and mother now demand that the hospital provide the donor's data and that they pay damages. The hospital invokes force majeure (article 6:75 BW), because it wants to provide K43's data, but does not feel free to do so because K43 does not agree.

The court ruled that the daughter is in principle entitled to the data, but that these can only be provided after a balance has been struck between her interests and those of K43, as stipulated in Article 7 CRC and Article 8 ECHR and as also takes place under the WDKB with requests from children conceived with sperm donated after 1 June 2004.

Because the donor is not a party to the proceedings, the court has limited information about his motives and interests, and the fact that the donor cannot appeal against a weighing of interests, the court rules that they cannot make the weighing of interests. The compensation is also rejected.

Here, according to the court, the limit of what the judge can decide has been reached and it is the legislator's turn. They urge the legislator to make a balancing of interests possible after all.

The court therefore considers:

“The fact that, in addition to anonymous donors . . . there were also donors who were only known to the KID agency and who subsequently withdrew their initial consent to the disclosure of their data, was insufficiently recognised by the legislator when establishing Article 12 WDKB. This while children conceived with the latter donors, such as the daughter, could count on finding out the identity of their biological father and are therefore . . . hit particularly hard in their fundamental right to know from whom they descend. Moreover, there is no reason to think why children conceived before 1 June 2004 with sperm from a known donor should be denied the weighing of interests provided for in Article 3 paragraph 2 WDKB for children conceived after 1 June 2004 with sperm from a donor.”

This first lawsuit by a donor child to discover the identity of the donor father has far-reaching implications for children of sperm donors who expected to learn the identity of their biological father.

Donor 605

A similar case is currently pending before the District Court of The Hague in which five donor children and their four parents are demanding that Medisch Centrum Kinderwens and the SDKB disclose the details of donor 605 – who has changed his status to anonymous. The court will rule on this case on 2 June 2021.

Legislator

Following the report of the Second Evaluation WDKB, which was presented to the House of Representatives on 29 May 2019, the Minister of Health, Welfare and Sport indicated in a letter dated 26 September 2019 that switching B donors to anonymity does not fit in with the spirit of the Wdkb. Depending on the judicial decisions, the Minister is prepared to initiate a change in the law. According to the Minister, a change in the law could mean that data from a B donor from before 2004 will in principle be provided, unless the donor can demonstrate a compelling interest in not providing his personally identifying data. According to the Minister, this is more in line with the spirit of the Wdkb, whereby B donors from before 2004 are treated in the same way as donors from after 2004.

To ask?

If you have any questions regarding the above, please do not hesitate to contact us. contact with one of our lawyers. They will be happy to answer your questions.