The Right of the Child Conceived by MAR to Know His or Her Origin

The Right of the Child Conceived by MAR to Know His or Her Origin Presented by: Prof. Dr. Sc. Graovac Date: 22 February 2024 History - The first attempts to „artificially" inseminate a woman, were done by Henry IV (14251474), King of Castile, nicknamed the Impotent - In 1455, he married Princess Juana sister of Afonso V of Portugal - After six years of marriage she gave birth to a daughter, Joanna - The possibility of artificial insemination was launched - It was claimed that the princess was not the daughter of the king - Stigma of infertility Steptoe and Edwards 1978 - Initiated IVF revolution - Applied laparoscopy for women - Enabled insemination in vitro - 1978. the birth of Louisa Brown - Hope for infertile couples - Pandora's box was opened: ethical, psychological and legal issues - A path toward surrogacy as well - Influences: providers of IVF globally reported profits of $12.5 billion in 2018, and are expected to generate profits of up to $25.6 billion in 2026 Search For Donors - In the beginning (only) male donors donating sperm • Simple procedure • Cryopreservation • Some compensation - Female donors donating ova • More health risks for female donors • Laparoscopy • Ethical issues (not allowed due to „split motherhood" - Embryonenschutzgesetz in - • Germany, Norway, Switzerland and Turkey) • Compensation (900 Euros in Spain) Couples donating surplus embryos • - Not so often Contemporary: IMAR - Interfamilial medically assisted reproduction Anonymity of donors - The use of a gamete donor has been based on the same principle of anonymous donating, without payment, as organ donors - Anonymity a good way to encourage gamete donation - The danger of too many offspring not knowing each other - It can be assumed that at least one out of two donor-conceived persons is seeking to know their origins, hence the importance for these persons of having access to certain information about their genitors - These children have set up associations campaigning for the recognition of the right to know their origins - The motivation of children demanding access to information about their origins is bound up with issues of identity and personal development - Medical or health considerations/hereditary diseases - When identity considerations are combined with medical aspects, donor- conceived individuals' lack of knowledge of their origins may frustrate or complicate their plans to have children (a lack of knowledge of their biological past places these individuals in a state of uncertainty and fear of developing disorders) Development Of Gene Databases - Possible to obtain a genetic sequence and run a search for a genetic match with the millions of genetic profiles in the database - Possible to find siblings and to search further - Voluntary basis - Some expenses Obstacles To Donors' Anonymity - The parents' right to privacy - The possible risk of destabilizing the legal family - The donor's right to privacy - The risk of gamete donations drying up (a necessity for remuneration) Arts. 7 and 8: Convention on the Rights of the Child - Art. 7: the right of the child „as far as possible, the right to know and be cared for by his or her parents" - Article 8: the child's right to preserve his or her identity, including his or her family relations, without unlawful interference - Soft law • The Government of Luxembourg - reservation: considers that Article 7 is no bar to the legal procedure for anonymous childbirth which is considered to be in the interests of the child, as provided for in Article 3 of the Convention • The Committee on the Rights of the Child, Concluding remarks Denmark (already in 1995), Norway, and Ireland, Art. 7 includes the right of the children to know their genetic identity especially when the children are conceived by artificial insemination • Only the right of the child (till the age of majority) Trends in Europe - No direct judgments of the ECHR on the anonymity of donors (Gaskin, Mikulić, etc.) - Indirectly, ex.: Menesson v. France • The children's right to their identity, an aspect of the right to respect for private life - Margin of appreciation (Austria, Croatia, Germany, Switzerland, the Netherlands, Austria, Finland, Iceland, Sweden, the United Kingdom, and Ireland reveal the identity of a donor) dual system: Belgium, Denmark, Hungary, Iceland, Russian Federation - Striking a fair balance between different interests • States would argue that anonymity was in the best interests of the donorconceived person - • Privacy of parents and donor • Public interest (to have a donor program) Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption - EU Regulation on standards of quality and safety for substances of human origin intended for human application traceability of gametes Demographic Importance - In 2017, the share of ART-related births was 7.9% in Spain and 1.7% in Poland - In Croatia 5% - Demographically relevant? - In Croatian new demographic strategy is emphasized as relevant • Due to non-anonymity of donors, no banks of gametes • Plans to import sperm and eggs • To get permission to relocate gametes abroad, patients recently have to give the statement that will not use anonymous donations abroad (as well as surrogacy arrangements) - eliminate responsibility of the State for breach of personality rights persons conceived by donor gametes Future - A better solution is through public health campaigns motivate women/couples to give the first birth earlier - Safeguard the welfare of the child - Holistic approach - Balance different rights - Thinking about new legal regulations, as communication agreements between the donor, parents, and child - The best interests of the child always has to be a paramount consideration