Donor anonymity in assisted human reproduction in Ireland

Date published

02/10/2020

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On 4 May 2020 Part 2 and 3 of the Related Regulations in the Children and Family Relationships Act 2015 (the 2015 Act) commenced. Overnight, this legislation introduced a ban on the use of anonymous donor gametes in Ireland.

National Donor-Conceived Person Register

Under the 2015 Act the Minister for Health will create and maintain the National Donor-Conceived Person Register (the Register). The Minister shall make an entry in the Register in respect of each child born in Ireland as the result of a Donor Assisted Human Reproduction (DAHR) procedure, containing information (as set out at section 33 of the 2015 Act) regarding the donor-conceived child, the child’s parents, the donor and the DAHR procedure.

Before attaining the age of 18, the donor-conceived child or the parents may apply to the Minister to request information from the register (excluding the donor’s details) including information relating to the number of persons who have been born as a result of the use in a DAHR procedure of a gamete donated by the relevant donor (see section 34(1) of the 2015 Act).

According to section 35 of the 2015 Act, upon reaching the age of 18, the donor-conceived child may request from the Minister the name, date of birth and contact details of a relevant donor. Upon receipt of such request the Minister will notify the donor of the request and in accordance with section 35(2)(b), the Minister has 12 weeks from the date the notice is sent to provide the information requested. This is however subject to whether representations are made by the relevant donor to the Minister as to why the safety of the donor or the donor-conceived child, or both, necessitates that the information should not be released.

As set out in the remaining paragraphs of section 35 of the 2015 Act, the Minister will then consider the representations made in light of the child’s right to know his or her identity. If the Minister is satisfied that “sufficient reasons” exist to withhold information, the Minister will proceed to refuse the donor-conceived child’s request. The Minister will then notify the child of the refusal and may inform the child of the representations made by the donor. The child can appeal the decision to the Circuit Court, within 21 days from the receipt of the notification.

Unfortunately, the 2015 Act does not specify the “sufficient reasons” for the refusal of the request, neither does it provide any specific guidance that would assist the Minister in making the decision. Additionally, the Minister has a discretion in deciding whether or not to inform the child of the representations made by the donor. We anticipate that the lack of specificity in the legislation with regard to the reasons why a Minister can refuse a donor conceived-person’s request for information about their donor, may potentially lead to litigation in due course.  

Birth certificate

Whilst the Registrar of Births is obliged to keep a note that a child is a donor-conceived child and additional information about the child is contained in the Register, no such information shall be recorded on the birth certificate.

Under the 2015 Act, if the donor-conceived child, upon attaining the age of 18, applies for a copy of their birth certificate, the Registrar for Births shall, upon providing the child with a copy of the birth certificate inform them that information about them is contained in the Register.

Other jurisdictions

There is currently a divergent approach across Europe in terms of donor anonymity.

Spain currently offers anonymous gamete donation.

In France donor anonymity is currently protected by law, with the donor themselves unable to waive their right to anonymity. There is, however, proposed legislation currently going through the French parliament which includes provisions that would partially lift anonymity of donors, if passed.

In the UK there has been a complete ban on anonymous gamete donation since 2005, which followed on from the decision in Rose & Anor v Secretary of State for Health and HFEA [2002] in which the House of Lord’s held that people had a right to obtain information concerning their biological origins.

Comment

The balancing act which has been played out in Ireland, as in many jurisdictions across the world, was between the rights of identity of the donor-conceived child and the right to privacy of the donor.

Lobbying to ban anonymous donor gametes had been ongoing in Ireland for many years prior to the legislation being commenced. The right to identity was envisaged in articles 7 and 8 of the United Nations Convention on the Rights of the Child.

The introduction of the 2015 Act has been heralded by many as vitally important for the protection of the rights of children. The legislation will enable donor-conceived offspring to identify their genetic parents once the child reaches the age of 18 and could, for instance, thereby enable them to obtain vital and lifesaving medical information.

Whilst the ban on anonymous gamete donation has been introduced to protect the rights of persons to know their genetic origin, in practice the ban in some other jurisdictions has seen a decline in fertility treatment options. One unintended consequence potentially being that those wishing to use anonymous donor gametes will seek fertility treatment in countries where there is no such ban.