French Gamete Donations No Longer Anonymous; Unresolved Issues for ART with Third Party Donors

31/08/2022

On September 1, 2022, the 2021 French Bioethics law comes into force, meaning that gamete donations will no longer be anonymous. Children born of assisted procreation (IVF or insemination) with a third-party donor, will be able, when they reach age 18, to request the removal of anonymity of the donor, man or women, who gave his gamete and who is at the origin of their life.

 

Why Has the Law Been Changed?

 

Gamete donation which exists since the 70s, was legalized in France with the first bioethics law in 1994. In spite of many ethical issues and risks  this practice was authorized to alleviate the heartache and suffering of medically diagnosed infertility. The legal framework was meant to be strict: this practice  was allowed for therapeutic reasons, following the laws of natural procreation i.e. for living male-female couples of childbearing ages.. These conditions have completely disappeared in the new 2021 bioethics law which allows medically assisted reproduction for lesbian couples and single women, and legally obliterates all paternal reference for some children.

 

Now that the generation of children who had been conceived by anonymous donors has come of age, they have borne witness to the suffering they have experienced by being deliberately deprived knowledge of their origins. A certain number of them have undertaken research, and set up an association, to testify and demand that the law be changed.

Gradually their collective voices have been heard : on April 12, 2019, the Parliamentary Assembly of the Council of Europe adopted a recommendation asking that the anonymity of gamete donors be lifted, considering that it was contrary to the rights of the child.

 

The experience of adoption for children who have been deprived of a family already attests the hardship of separation, both for the child, as well as for his parents. Deliberately creating this rupture is a serious assault on a child’s identity.

 

Knowing your origins – your father and mother – is a genuine necessity. The law was changed to take this reality into account. Yet the law only considered the consequences, without looking into the root of the problem.

In addition, total anonymity can no longer be assured due to the availability of over-the-counter DNA tests purchased abroad. Using the internet and accessing huge DNA data banks, many people have been able to find their father, and half-brothers and sisters.

 

Changes Effective on September 1, 2022

 

As of September, people who wish to donate their gametes (sperm and oocytes) or frozen embryos must consent to revealing their surname, first name, date and place of birth, as well as other non-identifying data such as their general condition and age at the time of donation, family and professional situation, physical characteristics, and their motivation for donating. Upon request, this information can be made available to the children resulting from these donations, when they reach majority. Lifting anonymity does not mean that adult children will be able to contact their biological father or mother, who retain the decision of whether or not to have such interactions. Nor does it alter filiation based on intention, as established by the 1994 Act.

 

Supervising and following up the requests for lifting the anonymity will be referred to the “Commission for Access to Third Party Donor Data for Persons Born via ART (Artificially Reproductive Technology)”. On August 29, 2022, the government announced the names of those who will compose this commission, which is placed under the Health Ministry, and presided over by a magistrate. Its members are either representatives from the Ministries of Justice, Social Affairs and Health, or from associations representing children born from anonymous donations such as the Association of Gay and Lesbian Parents, “Origines”, or “PMAnonyme”.

 

Donations Prior to September 1, 2022

 

Any donations made prior to September 1, 2022, will remain anonymous. However, any donors who so desire can transmit their personal data to the commission and retroactively accept to have it revealed if any child born from their donation requests it.

Persons born via ART before the law was changed can also refer the matter to the commission, requesting that their donor be contacted to see if he/she would consent to lifting the anonymity. In the event of refusal, the person’s identity would not be revealed, and any remaining frozen gametes would be destroyed, at a date to be determined by a decree. But even if the administration maintains the donor’s anonymity, his identity could be deduced by DNA testing.

 

What does this lifting of anonymity tell us? Doesn’t it confirm that biological origins cannot be swept away as if they were of no importance? This specific change in the bioethics law has evolved to limit the consequences for children born from donations but it has not addressed the root problem. Furthermore, the need and the desire to know one’s origins doesn’t only start at age 18; existential questions are also put forward in early childhood. By outlining the conditions of access to ART, the bioethics law is increasingly degrading the rights of the child in favor of the right to a child. It is violently trespassing children’s rights protected by the International Convention on the Rights of the Child which stipulates “the right of the child, in as far as possible, is to know his parents and to be raised by them.”

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