Access to origins: Belgian law deems gamete donor anonymity unconstitutional

After the birth of two daughters conceived through artificial reproduction with a gamete donor, a woman asked the fertilization center for access to the donor's identifying and non-identifying information, without any medical reason. When UZ Brussel refused, the mother and one of her daughters turned to the Brussels Court of First Instance. The 2007 law “relating to medically assisted procreation and the destination of supernumerary embryos and gametes” stipulates that a fertilization center “is obliged to make inaccessible any data enabling the donor to be identified” in the case of an “anonymous” gamete donation. Disclosure of such information would be tantamount to violating medical secrecy, protected by article 458 of the Penal Code.

In its judgment, the Court recalled that the right to respect for private and family life protected by the Constitution was very broad in scope, and implied in particular a “right to identity and personal fulfilment”, which included the “right to know one's origins”. While “interference by the public authority” in the exercise of this right is possible, the Court found that the Belgian legislator had not “struck a fair balance between the competing interests of all those involved in medically assisted procreation”.

The Constitutional Court therefore called for “legislation on access to information concerning the donor by a child born of a gamete donation, which strikes a fair balance between all the interests and rights concerned, and in particular between the right of the child born of a gamete donation to know his or her origins and the right of the gamete donor to respect for his or her private and family life”. It remains unclear how these competing interests will be reconciled. This echoes the opinion of Belgium's Bioethics Advisory Committee, which in late 2022 advocated a three-option solution enabling the donor to be either anonymous, identifiable or known, without any legal guarantee of access to origins for the child born of the donation. (See PMA: Belgium's Bioethics Advisory Committee considers lifting donor anonymity).

In its desire to protect gamete donors and avoid shortages, the legislator at the time overlooked the interests of the child thus conceived. This case raises the delicate question of the symbolic significance and psychological impact of gamete donation, on both children and donors. The lifting of anonymity requested by the Court will perhaps shed some light on this singular relationship between the child born of the donation and the person who helped give him or her life.

Image : JillWellington