Czech laws have a crack at anonymous donation of germ cells. The hidden identity of the donor and at the same time the child’s right to know the origin causes a collision, Jacob Falk, a lawyer from Masaryk University in Brno, is clear. But he also sees another contradiction. “There is no legitimate reason to prevent the establishment of contact between a donor and an artificial child in a situation where both parties agree to this or even seek to achieve it,” he says in an interview with the iROZHLAS.cz website.
How is the anonymity of gamete donors legally regulated in the Czech environment?
The applicable legislation contained in the Specific Health Services Act explicitly establishes the requirement of mutual anonymity for gamete donation. This means that the provider of the health service provided (assisted reproduction) is not authorized or obligated to disclose data about the anonymous donor of an infertile couple or a child born in this way, and the reverse also applies, i.e. to any efforts made by the anonymous donor to obtain data on An infertile couple or a child that was conceived using an egg or sperm.
The exception is data on the donor’s health status, which must be kept by the provider for at least 30 years. This may be disclosed to an infertile couple or to an adult born as a result of assisted reproduction upon written request.
Origins – long gametes
Were there efforts to change this situation in the past?
Yes, in 2015 there was already an active effort to change the legislation, also in order to break the principle of anonymity. The donor data was to be archived by the provider for up to 80 years and, upon request, sent to the relevant registry office for registration in the form of an appendix to the birthbook, which could be adults born from donated sex cells. However, the law amendment was not adopted.
What is the situation in neighboring countries?
At the international or European level, there is no comprehensive and uniform legal regulation of assisted reproduction, including gamete donation. The exception is EU legislation in the field of regulating handling of human tissues and cells, which also includes eggs and sperm. However, regarding the (non-)anonymity of the gamete donation process, there are no clear specific conditions, and therefore everything is largely at the discretion of individual states.
For this reason, at the national level, we can meet the requirements of complete anonymity of the donor and, conversely, an approach based on conditional disclosure of their identity. An example is neighboring Germany, where a register of sperm donors is established by law, where the identification data of the donor and recipient is recorded, which the child can view after reaching 16 years of age.
Conflict of rights of the child and the donor
So how is it in the Czech Republic? Are clinics or the state obligated to register gamete donors? The question is, can the donor visit several clinics of different companies and the clinics do not share this information?
Under the current legal situation, there is no legally created central registry in which data on gamete donors and donation cycles is obligatory and subsequently shared. Therefore, a situation can really arise where a person donates sex cells (usually sperm) multiple times or repeatedly.
After all, the legislation does not even set a maximum number of donations per person. This is also related to the motives of the donor, when the relatively high amounts of money that are usually given as “compensation for donation costs” cannot be neglected.
Assets – Nurse Interview
On the one hand, in the Czech Republic, we have the right to anonymize the donors, and on the other hand, the right of the child to know his or her origin. Do they not contradict each other?
There is no dispute that the legislative entrenchment of the principle of anonymity for gamete donation leads to a conflict of basic rights of the child and his genetic parent (the donor). In the case of pregnancy in this way, one can speak of his right to know his origin and the circumstances of his birth as part of the personal rights expressly provided for in the Convention on the Rights of the Child.
The donor’s right to private and family life is then protected meaning that he will not be sought or contacted by his family by the artificial child. Therefore, a reasonable solution must be sought that respects the rights of both parties, and possibly other protected interests as well.
Does the aforementioned anonymity of the gametophyte donor apply even at a time when both the donor and his biological child are interested in breaking it?
Unfortunately yes. But in my opinion, this is one of the main arguments for questioning the current legislative approach. There is no legitimate reason not to establish contact between the donor and the artificial child in situations where both parties agree to or even seek to do so.
Likewise, anonymous births are permitted in some states, when the identity of the child’s biological mother can be made available, subject to her consent. In the case of assisted reproduction, of course, the interest of infertile spouses in undisturbed cohabitation and child-rearing cannot be neglected, but this can be solved, for example, by setting an age limit for obtaining relevant information and the like.
What is your legal opinion? Should the best interest of the child or the donor be prioritized?
Personally, I am in favor of the fact that a child born in this way should have the right in the future at a certain age and under certain conditions to receive information about his real parents or his genetic origin. It should be noted that in the event of a change in the legislation in this direction, the donor of germ cells will be informed of the consequences of donating germ cells, that is, identification. So his free decision will continue.
“On the other hand, no child can choose the conditions and circumstances in which he will be born and be born. Therefore, legislation must primarily seek the best interest of the child, who is the most vulnerable in the whole process.”
Jacob Falk (Attorney Masaryk University of Brno)
On the other hand, no child can choose the conditions and circumstances in which pregnancy and childbirth will take place. Legislation must therefore seek primarily in the best interests of the child, who is the most vulnerable in the whole process, even at the cost of a possible reduction in potential donors of gametes.
Children born today from donated sex cells have a worse initial (legal) situation, because the law guarantees their anonymity to their genetic parents. In their case, I see a certain possibility in the fact that with reference to their fundamental rights, they can only demand that such data be reported that will not allow the identification of the donor, which, in my opinion, will not be. It conflicts with the purpose of the current legislation. However, the problem is that in the different disposal periods applied in the past, so records of procedures decades ago are no longer realistically available to medical facilities. In addition, the amount of donor-related data obtained as part of the entrance examinations will be limited.
How about informing babies born thanks to donated gametes? Should parents tell him he’s “gifted” as they are with adopted children?
They do not have while adoptive parents have a legal obligation to inform the child of the adoption process no later than the start of compulsory education, there is no similar obligation with respect to a child born with the help of donated gametes. So the approach of the Czech legislator is to some extent schizophrenic.
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