Secrecy & anonymity in donor assisted conception and the right to genetic origins information: The current status in Greece

Introduction

When the issue of donor assisted conception arises two bioethical and legal issues have to be answered. Firstly, when can a donor be considered as a legal parent of a child who claims to have been born through his genetic material? Secondly, should anonymous sperm donation be allowed? The donors can have three characteristics: a) they can be compensated or uncompensated, b) they can be known or unknown, c) they can be anonymous or open identity released donors.

The art. 1460 of Greek Civil Code establishes the principle of anonymity of the third persons who have offered the gametes or the fertilized eggs (donors). In Greek Law we talk about “Donors”, because the genetic material can only be donated, not sold (art. 8 §1 Law 3305/2005). While we refer to donations as “anonymous”, the term primarily refers to the fact that identifying information about the donor or recipient is never disclosed. Medical information concerning the donor is recorded in a special confidential file, in coded form, without indication of the identity of the donor. Access to this file is allowed only to the child and only for reasons related to its health. For the archiving of medical information, art. 8 § 6, 15, 16 § 6, 17 § 7, 20 § 2 of Law 3305/2005.

The principle of donor anonymity

The Greek legislature has opted for the anonymity of the donor of genetic material. ¹ But the arguments are strong both in favor of known donors and in favor of anonymity.

The view in favor of known donors is based on the fact that the right of everybody to his origin derives from the right of protection of personality (art. 57 of Greek Civil Code), is guaranteed by consecutive constitutional provisions (art. 5 §1, 2 §1, 4 §1, 21 §1, 25 §1 of Greek Constitution), but also by International and European Conventions (art. 7 of the International Convention on the Rights of the Child and art. 8 of the European Convention on Human Rights). By revealing the identity of the donors, incestuous marriages are prevented. In addition, the knowledge of blood ties has medical value, for the information of inherited diseases and other data of the donor's health, useful for the protection of the health of the child. In any case, the child has the right to know his origin, which derives from art. 5 of Greek Constitution, ¹ as required by his psychological interest.

The view in favor of donor anonymity argues that in this way both parties are protected from future interference, while in any case donors are not legally parents, unlike natural parents in adoption, whose details they are entitled to be fully informed the adopted children with their adulthood (AK 1559). ² More precisely as a legally protected right, according to the proponents of donor anonymity, the protection of “socioemotional kinship”, according to which, in view of the rapid development of assistant reproduction methods, the importance of biological truth and origin decreases, the will of the parties, which legally connects the child not with his “genetic”, but with his “social parents”, emerges as an important factor for the establishment of legal kinship. In the context of this modern principle, the anonymity of third-party genetic donors is imperative, as it protects both parties from unpleasant future psychological changes and interventions between “biological” and “social” families, which will be to the detriment of the child. ² At the same time, it strengthens the donation, while it prohibits any financial transaction as no bond is established between donor and recipient. ³

On the other hand, the principle of complete anonymity of the donor violates the right of the child to know its origin, a fact that cannot be overlooked in any case. It is preferable that the policy of relative anonymity of the donor/relative knowledge of the origin is adopted, because if the child has access to important data of the donor, such as medical information, basic external characteristics, etc., but without knowing his full identity, such as name, home address, telephone, its relevant interest will be satisfied, and at the same time its family peace is not endangered. In any case, based on art. 7 of Law 2101/1992, which ratified the International Convention on the Rights of the Child, the right of the child to know his parents is guaranteed, without distinguishing whether they are legal or biological parents.

Australian law, ⁴ in all of its states except Western Australia, allows donor information to be identified when the child is eighteen years old. Other countries such as the Netherlands ³ , Norway ⁴ and Sweden ⁵ also have similar legislation. Hong Kong ⁵ has recently followed this trend by allowing the identity of the donor to be revealed when the child reaches the age of sixteen. Countries such as Canada ⁶ and Iceland ⁶ have adopted a “double track” approach, according to which information is only identified when donors have consented to it. Countries such as Austria ⁷ (which only allows sperm donation), Denmark, ⁷ France, ⁸ Germany (also allows only sperm donation), ⁹ Israel, ⁸ New Zealand, ¹⁰ Portugal, ⁹ South Africa ¹⁰ and Spain ¹¹ have chosen the donor's anonymity system.

Exclusion of judicial recognition by the donor

Judicial recognition of the child by the donor is excluded, even if his / her identity becomes known afterwards (art. 1479 of Greek Civil Code). Judicial recognition of paternity cannot take place, according to art. 1479 § 2 of Greek Civil Code, which provides that in case of artificial insemination with genetic material of a donor, the judicial recognition of the child is excluded, even if the identity of the donor becomes known afterwards. Purpose of the provision of art. 1479 of Greek Civil Code is to cover any removal or violation of the anonymity of the donor of genetic material, so that, even if the donor becomes known, he will not be able to be recognized as a father.

However, the question that arises is how it is possible, given the anonymity of the donor of the genetic material, to find out the biological paternity. It is rightly argued ¹¹ that art. 1479 § 2 of Greek Civil Code completes the anonymity regime established by art. 1460 of Greek Civil Code and in case for some reason the rule of art. 1460 of Greek Civil Code is violated, and the anonymity is removed, the art. 1479 § 2 of Greek Civil Code is applicable.

Donor medical information

Medical information concerning the third donor is kept in absolute secrecy and in coded form in the cryopreservation bank and in the national file of donors and recipients of art. 20 § 2 ed. c΄ Law 3305/2005 (see also art. 8§6 Law 3305/2005). The Assisted Reproduction Authority keeps two files (art. 20 § 2 ed. c & d Law 3305/2005): a) The file of confidential medical data of the donors of fertilized material and fertilized eggs, whose data are registered in coded form. Access to this file is allowed, with the permission of the Assisted Reproduction Authority, only to the child, for reasons related to his health (art. 20 § 3 Law 3305/2005) and the b) top secret files containing the identity data of the donors of genetic material and fertilized eggs, as well as the corresponding code (art. 20 § 3 Law 3305/2005). Anyone who discloses in any way the identity of donors and recipients of gametes or fertilized eggs in violation of the relevant legislation is punished with imprisonment of at least two years unless a heavier sentence is provided by another law (art. 26 § 11 Law 3305/2005).

Conclusion

In view of the above, it could be concluded that Greek legislation is very strict with the anonymity of the donor of genetic material. As described above, the system of the relative anonymity of the donor/relative knowledge of the origin may be more correct, because two significant rights are balanced this way: the right of knowledge of the origin and the right of privacy of the donor of genetic material.