Anonymous gamete donation and Article 8 of the European Convention on Human Rights: The case for incompatibility

Abstract

It has long been suggested that anonymous gamete donation may breach the rights of donor-conceived persons under Article 8 of the European Convention on Human Rights (ECHRs). However, this has never been definitively addressed by the European Court of Human Rights (ECtHRs). The purpose of this article is to comprehensively set out the argument that anonymous gamete donation constitutes an unjustifiable interference with Article 8 ECHR. The article analyses the rich jurisprudence of the ECtHR on the right to identity in the fields of paternity and anonymous birth, and argues that the right has a ‘tracing’ element and a ‘recognition’ element, both of which are engaged in the anonymous donation context. It is argued that despite the absence of consensus across the Member States, proper analysis of the application of Article 8 should conclude that regimes that permit anonymous donation fail to strike a fair balance between competing rights and interests.

Introduction

It has long been suggested that anonymous gamete donation may breach the rights of donor-conceived persons under Article 8 of the European Convention on Human Rights (ECHRs), which protects the right to respect for private and family life. ¹ However, this has never been definitively addressed by the European Court of Human Rights (ECtHR). The purpose of this article is to comprehensively set out the argument that anonymous gamete donation constitutes an unjustifiable interference with Article 8 ECHR, and therefore that legal regimes that allow for anonymous gamete donation are not Convention compliant. This is a timely subject for analysis. Two cases are pending before the ECtHR which engage this very issue: Gauvin-Fournis v. France ² and Silliau v. France ³ . Meanwhile, in April 2019 the Parliamentary Assembly of the Council of Europe (PACE) recommended to the Committee of the Ministers that the use of anonymously donated sperm and eggs should be prohibited, though this recommendation received a rather muted response. ⁴ These developments across separate branches of the Council of Europe demonstrate that anonymous donation is a pressing matter of European human rights law, which is in serious need of resolution by the ECtHR.

This article begins by tracing the evolution of the debate on anonymous donation globally and discussing the contemporary position regarding anonymous donation in the Member States of the ECHR. It then goes on to examine the jurisprudence on the right to identity from the ECtHR, and the case law on identity in the context of assisted reproduction, and argues that because of the way in which the right to identity has been conceptualized by the Court, there can be no doubt that Article 8 is centrally engaged in the anonymous donation context. It is further argued that the right to identity has a ‘tracing’ aspect and a ‘recognition’ aspect, both of which are potentially significant in anonymous donation. The article then builds on this analysis to argue that regimes that ensure or permit anonymous gamete donation constitute an impermissible interference with the rights of the donor-conceived person under Article 8 ECHR. The article accepts that there is an absence of consensus on this topic across the Member States of the Council of Europe, but argues that even if a broad margin of appreciation is afforded to the states, anonymous donation regimes fail to strike a fair balance between the rights and interests of those involved.

Anonymous gamete donation in Europe and the right to identity

Anonymous gamete donation is the practice of permitting the donation of eggs and sperm for use in assisted reproduction, on a wholly anonymous basis whereby the donor can never be traced by the resulting child. This is distinguished from identifiable donation whereby the resulting child can access identifying details on the donor. Identifiable donation should in turn be distinguished from known donation, where the donor is a person who is known to the commissioning parents. ⁵

The right to identity has various meanings. In the context of gamete donation, the right to identity refers to individual identity, or identity as a synonym for personality. Eekelaar distinguishes this form of identity from communal identity. ⁶ Communal identity refers to features that a person shares with others, and the way in which those features mark a person as being part of a wider community of persons having certain common features. ⁷ Individual identity, however, concerns the person themselves, and the particular combination of characteristics that make up that person. The person’s subjective self-perception is key to this form of identity. ⁸ Brock characterizes this as psychological identity, that part of one’s identity that consists of the ‘properties or qualities that an individual considers important to who he is, to what kind of person he is, to what properties of himself he identifies with’. ⁹ In terms of legal protections, personality rights have deep roots in and enjoy extensive recognition in European civil law legal systems, whereas this form of right is relatively alien to the common law. ¹⁰ As such, it is no surprise that there is a rich body of identity rights jurisprudence under the ECHR, which is eminently relevant to the novel context of anonymous gamete donation. It is also important to note that the right to identity is expressly protected by Articles 7 and 8 of the United Nations Convention on the Rights of the Child 1989, and this has been interpreted to extend to the right of adopted persons and donor-conceived persons to know their biological origins. ¹¹

Anonymous donation – divergent norms and legal regimes

Anonymous gamete donation has long been one of the most divisive practices in assisted human reproduction. The controversy around anonymous donation stems from two directly conflicting views. Historically, it was thought to be in the best interests of the donor-conceived person not to inform them about their true genetic origins. The belief was that it was less disruptive to the family life and general wellbeing of the child and his or her family not to inform them of the circumstances of their conception. Linked to this was a belief that knowledge of one’s genetic origins was simply not all that important, and certainly not central to effective personal development. ¹² Over time, a different view emerged. ¹³ This view emphasized the importance of the child’s entitlement to know his or her genetic origins. Philosophically speaking, the basis of that entitlement was both instrumental and deontological. ¹⁴ From an instrumental perspective, openness and honesty from the outset was believed to aid the donor-conceived person’s development and enhance family cohesion. ¹⁵ It also reduced the risk that the fact of donation would be revealed late, and in potentially distressing circumstances. ¹⁶ From a deontological perspective, the entitlement of a child to know his or her genetic origins was increasingly framed as a fundamental right and the child was characterized as being ‘wronged’ if deprived of the information that he or she was donor-conceived, and of the information necessary to identify and trace the donor. ¹⁷ The adoption experience is often relied upon to inform this discussion. ¹⁸ Commentators argue that the experience of ‘closed adoption’ demonstrate that ignoring biological heritage has failed in the past, and a broad consensus now exists in the context of adoption that open rather than closed adoption is optimal for all parties. ¹⁹

It is undoubtedly the case that some donor-conceived persons feel a very strong need to know the identity of their donor, and may wish to build a relationship with them, but that other donor-conceived persons have no such desire whatsoever. ²⁰ In response to this, Ravitsky has argued that donor-conceived persons suffer an interference with their autonomy when deprived of the knowledge that they are donor-conceived and the information they need to access their donor, because they need that information to make an informed, autonomous, evaluation about how they feel about the importance of their genetic origins. ²¹

Though much academic opinion has shifted away from support for anonymous gamete donation, a cohort remains in favour of permitting anonymous donation. ²² In part, this reflects a concern for the maintenance of donor numbers; the important practical concern that the abolition of donor anonymity may drive away some donors. ²³ Notably, this was flagged in the response of the Committee of the Ministers to the PACE Recommendation, as discussed further below. Separately, some commentators raise a principled rather than practical objection, and reject the normative significance of identifiability and traceability. Glenn Cohen, writing in the US context, has challenged the normative importance of access to one’s genetic origins, arguing (somewhat tongue-in-cheek) that if a donor-conceived person’s register is necessary, then surely, a ‘one-night stand’ register is equally necessary. ²⁴ Cohen and others also argue in favour of the entitlement of the individual commissioning parents to choose whether anonymity or identifiability is best for their child and the family. ²⁵

Mirroring this degree of academic disagreement, there is divergence in regulatory approaches to anonymous donation across Europe. ²⁶ This absence of consensus is a factor which would be crucial in the ECtHR’s analysis, especially in respect of the margin of appreciation. ²⁷ Some jurisdictions have moved from endorsing anonymous donation to prohibiting it. Sweden was the first country to prohibit anonymous donation, which it did in 1984. ²⁸ In the United Kingdom, the transition from anonymity protection to anonymity prohibition was partially driven by activism on the part of donor-conceived people, who felt wronged by their inability to access information on their genetic origins. ²⁹ This culminated in the case of R. (on the application of Rose) v Secretary of State for Health. ³⁰ Though it never reached full hearing, this case prompted a change in UK law in 2005, as a result of which anonymous donation was no longer permitted. ³¹ Another jurisdiction of note is Ireland, which did not regulate anonymous donation at all until 2015. The Children and Family Relationships Act 2015 prohibits anonymous donation entirely, and goes so far as to require the State to inform the donor-conceived person that they are donor-conceived, if they seek a birth certificate when over the age of 18. ³² Ireland also proposes to extend this right to the right to know one’s gestational surrogate. ³³

Certain other European regimes continue to strongly protect donor anonymity. Both Spain and France provide an almost absolute guarantee of donor anonymity. Donor anonymity has been established in France since the passage of its first law on assisted reproduction in 1994. ³⁴ Anonymity applies not just to gametes, but also to donation of all parts and products of the human body: gametes are treated in the same way as any other body part or tissue. ³⁵ The commissioning parents are the legal parents of the child, the donor has no rights in respect of the child, and the child has no right to trace the donor. As Brunet and Kinstmann comment, French law ‘contrived to erase the donor’s status’. ³⁶ Not only is anonymity the norm, it is illegal to carry out donation on an identifiable basis. ³⁷ Similarly, Spanish law establishes a general rule that gamete donation is provided on an anonymous basis, subject to some very limited exceptions. ³⁸ A third approach is to permit both anonymous and identifiable donation. Denmark provides an example of this hybrid model whereby gamete donation may be either anonymous or identifiable, at the election of the commissioning parents. ³⁹ Pennings usefully describes this as the ‘double track’ model, ⁴⁰ terminology which is adopted in this article. ⁴¹

The position of the parliamentary assembly of the Council of Europe on anonymous donation

While the ECtHR has not yet had the opportunity to pronounce on the human rights of donor-conceived persons, another branch of the Council of Europe, has done so. The Parliamentary Assembly of the Council of Europe (PACE) recommended to the Committee of the Ministers in April 2019 that the use of anonymously donated sperm and eggs should be prohibited prospectively. ⁴² It recommended that anonymity should not be lifted retrospectively, except for medical reasons or where the donor waived the right to anonymity. In the Recommendation, PACE described the right to know one’s origins as an integral part of the right to respect for private life, while recognizing the interests of donors, commissioning parents, clinics and broader society. ⁴³ Notably, in the opinion of the Committee on Legal Affairs and Human Rights, which informed the recommendation, it was recognized that the ECtHR had not adjudicated on the question of this right in the context of gamete donation. ⁴⁴ In fact, it noted that the ECtHR was quite sympathetic to countervailing privacy rights. ⁴⁵ Nonetheless, PACE characterized the recommendation as aimed at improving the rights of all parties, while focussing on the rights of the donor-conceived person whom it characterized as the most vulnerable party.

The Committee of the Ministers provided a somewhat qualified reply in October 2019. ⁴⁶ It pointed to the great variation in practice across the Member States and stated that given the sensitivities of the area, any proposal for regulation should not be legally binding. It highlighted the possible negative consequences of any change in practice:

These consequences may include the potential impact on the supply and availability of donated gametes and embryos, the destiny of the cryopreserved gametes and embryos donated before potential legislative changes and the impact this life-altering information might have not only on donors, but also on their families and children. ⁴⁷

The response concluded by referring to the value of a non-binding instrument that would assist Member States in protecting the rights of donor-conceived persons, while ensuring a balance with the rights of other parties. This exchange between PACE and the Committee of the Ministers demonstrates that anonymous gamete donation is seen by many as a human rights issue of great concern that requires urgent action, but that it remains deeply sensitive and divisive across Europe.

Case law on the right to identity

There is a rich body of Convention jurisprudence on the right to identity. ⁴⁸ This is primarily an aspect of the right to respect for private life, although cases concerning genetic links are sometimes categorized as concerning the right to respect for family life, which is also protected by Article 8 ECHR. The ECtHR has consistently recognized that persons have a vital interest in accessing information that will enable them to know and understand their origins. The fundamental feature of this body of case law is that the court acknowledges the central importance of this information to all individuals for the purpose of self-development. The ECtHR generally applies a high level of scrutiny in such cases, and displays a low tolerance for State interference with the right, with one notable outlier in the challenging case of Odièvre. After the foundational case of Gaskin v UK ⁴⁹ , the case law can be broken down into two broad categories: the paternity case law and the anonymous birth case law. ⁵⁰

Gaskin v UK

Gaskin v UK ⁵¹ was not concerned with genetic origins, but rather with state care records. The applicant had been raised in state care, believed that he had been ill-treated, and wished to bring proceedings against the care authority. Subsequent to the termination of those proceedings the applicant was still denied access to his full case file, arguing that his Article 8 right to private life entitled him to access records relating to his childhood. ⁵² The Court’s central holding as to the application of Article 8 was that ‘persons in the situation of the applicant have a vital interest, protected by the Convention, in receiving the information necessary to know and to understand their childhood and early development’. ⁵³ The Court recognized the importance of confidentiality to ensure the receipt of frank and candid information, and to protect third parties, and as such, the British system which made disclosure dependent on the consent of the contributor was in principle permissible, taking into account the State’s margin of appreciation. ⁵⁴ The flaw in the British system, however, was that it did not provide any mechanism of independent arbitration to address a situation where a contributor could not be found, or improperly refused their consent. ⁵⁵

What is important to recognize about Gaskin is the origin of the ‘interest’ of the applicant in access to his case file. While the applicant had initiated proceedings against the care authority, those had concluded. He did not seek the documents to allow him to protect or advance any legal right. Rather, the Court framed his interest in the documents as being to enable him ‘to know and understand’ his childhood and early development. Though Gaskin makes no reference to ‘identity’, in the Court’s framing one can identify the origins of the ECtHR’s conception of the importance of the right to identity: the Court recognized the Applicant’s fundamental interest in self-knowledge for the purposes of self-development as an end in itself. This conception may be contrasted with a view that sees the information as only instrumentally important for the protection of some separate interest, such as the need to access that information for the purposes of protecting one’s health, or asserting a legal claim.

The paternity case law

In the case of Mikulić v Croatia ⁵⁶ the applicant was born when her parents were not married. Her mother took proceedings to establish paternity against the man she claimed to be the applicant’s father. These proceedings commenced in 1997 and remained under appeal in 2001 when the case was heard. In the course of the proceedings the putative father had consistently refused to cooperate, and avoided submitting to a DNA test. The applicant claimed that her right to respect for her private and family life had been violated through this inefficiency in deciding her paternity claim, which had left her uncertain as to her personal identity. ⁵⁷ The Court accepted that the applicant’s interest was covered by the concept of private life. Looking to Gaskin the court commented:

[R]espect for private life requires that everyone should be able to establish details of their identity as individual human beings and that an individual's entitlement to such information is of importance because of its formative implications for his or her personality. ⁵⁸

In this passage, one can observe a subtle development and crystallization of the concept at play in Gaskin. For the first time, the term ‘identity’ is used. The court expressly addressed the fact that information concerning identity is important because of its ‘formative implications’. Again, one can see the clear emphasis on the origins of this right as being bound up with self-knowledge and self-development. The Court found that the applicant’s circumstances fell within this aspect of Article 8 because the proceedings in question were for the purposes of determining her legal relationship with her putative father through the establishment of the biological truth. The Court thereby recognized the importance of two different interests of the applicant: the interest in factually establishing her paternity, and the interest in achieving legal recognition of that truth. These different aspects of the interest might be described as the ‘tracing’ aspect and the ‘recognition’ aspect. The tracing aspect encompasses the interest in finding out information that the person does not already know, that is, the identity of the parent. The recognition aspect means the interest in obtaining legal recognition of a fact pertaining to that person’s identity, ie. the State recognition that a certain person is a parent.

While acknowledging that the boundary between positive and negative obligations within Article 8 was not a fixed one, the Court framed the case as concerning the State’s positive obligations to secure the applicant’s Article 8 rights. ⁵⁹ The Court noted that a margin of appreciation existed, without commenting on the breadth of that margin, and emphasized the need to strike a fair balance between the interests of individuals and the general interest. The Court found a breach of Article 8 on the basis that the State had no mechanism to address a situation in which a person alleged to be a father refused a DNA test, therefore, there was no alternative means to allow an independent authority to make a determination as to parentage. As such, the restriction on the applicant’s rights was not proportionate. ⁶⁰

In Jaggi v Switzerland ⁶¹ the applicant was a 67-year-old man who wanted to have a DNA test carried out on the remains of the man he alleged to be his father in the context of an application to have paternity proceedings reopened and revised. The original proceedings concluded in 1948 when DNA evidence was not available. The domestic courts refused to revise the earlier judgment, and refused the application to admit new DNA evidence. The Court accepted that the refusal to sanction a DNA test, which would have allowed the applicant to confirm his paternity, affected his private life. In Jaggi the Court provided for the first time in this context a detailed account of the margin of appreciation. This doctrine refers to the discretion that is allowed to the Member States when taking legal action that bears on a Convention right. ⁶² The margin of appreciation doctrine plays a vital role in the application of Article 8 ECHR and will be very significant in the context of anonymous donation. The Court noted that the choice of how to secure Article 8 rights was in principle a matter that fell within the margin of appreciation, and said that the nature of the State’s obligation would depend on the particular aspect of private life in issue. Identity was, the court found, a very significant aspect of private life:

The Court considers that the right to an identity, which includes the right to know one’s parentage, is an integral part of the notion of private life. In such cases, particularly rigorous scrutiny is called for when weighing up the competing interests. ⁶³

This is an important statement that indicates that identity rights cases require a narrow margin of appreciation, and that a high degree of scrutiny will be applied to interferences with the right to identity. Considering the particular aspect of identity in issue in this case, the Court commented:

The Court considers that persons seeking to establish the identity of their ascendants have a vital interest, protected by the Convention, in receiving the information necessary to uncover the truth about an important aspect of their personal identity. ⁶⁴

In assessing whether a fair balance had been struck the Court flagged that the competing interests were the right of third parties to the inviolability of the deceased’s body, the right to respect for the dead and the public interest in preserving legal certainty.

Importantly, the State argued that the applicant – given his age – had clearly developed his personality in the absence of certainty as to his paternity and thus that the right should be granted less weight. This argument was rejected. Though the Court accepted that the applicant had been able to develop his personality, it stated that an individual’s interest in discovering his parentage does not disappear with age, but rather that ‘quite the reverse’ ⁶⁵ may be the case. The applicant had tried throughout his life to resolve this issue and the Court believed ‘such conduct implies mental and psychological suffering, even if this has not been medically attested’. ⁶⁶ The Court found that concerns raised in respect of exhuming the body were not persuasive, ⁶⁷ and ultimately concluded that the desire for legal certainty alone could not justify the domestic law’s unwillingness to permit this, and because of the applicant’s ‘overriding interest’ there was found to be a breach of Article 8.

Jaggi is important both in terms of its development of the substance of the right to identity and in that it provides a more sophisticated margin of appreciation analysis than previous cases. Jaggi confirms that the Court sees the moral foundations of the right to identity as grounded in a belief that all human persons are entitled to access information on their identity, whatever their age. While the court uses instrumental-type language in speaking of facilitating the need for personal development, and the harms to persons deprived of this information, in fact the Court makes no demand for empirical evidence of that harm. ⁶⁸ This is evident in particular in Jaggi where the respondent State tried to engage with the factual reality of the applicant’s personal development. Jaggi confirms that the ECtHR’s account of the right to identity is premised on generalized moral claim about the vital importance of the right to identity and access to information about one’s origins at all stages of life. The right is deontologically driven rather than instrumentally driven, grounded in a view that individuals are wronged rather than necessarily harmed by being deprived of the right to identity. The Court characterizes identity-related information as important to enable people to engage in personal development, but this quasi-instrumental purpose is premised on an a priori deontological assumption that people have an entitlement to personal development, to which identity-related information is essential. From Gaskin, Mikulić and Jaggi a consistent theme emerges: the Court recognizes that the right to access information on one’s origins, including one’s genetic origins is a key facet of the right to identity and rigorously enforces this right, including via a narrow margin of appreciation. ⁶⁹

The anonymous birth case law

In the paternity cases, the ECtHR has been relatively consistent in robustly enforcing the State’s obligations in respect of the protection of identity. A somewhat different approach has emerged, however, in respect of certain cases concerning anonymous birth. ⁷⁰ This is an ancient tradition which allows a woman enter a hospital, register as X, give birth and place the child straight into the hands of the state without ever disclosing any detail about her identity. The original purpose of anonymous birth is to prevent abortion, infanticide and abandonment. ⁷¹ In Odièvre v France ⁷² the Court considered a challenge to the French law that permits anonymous birth. The applicant was born through this process and placed for adoption. She was allowed access to non-identifying information only and claimed that the secrecy of her birth violated her rights under Article 8. The Court acknowledged that Article 8 was applicable, because of the applicant’s vital interest in obtaining information necessary to discover the truth concerning important aspects of her personal identity, such as the identity of her parents, and acknowledged that birth and the circumstances of birth form part of a child’s, and subsequently an adult’s private life. ⁷³ The Court framed the case as concerning positive obligations, though it could equally have been framed in terms of negative obligations insofar as it involved a positive law that actively established a regime of anonymous birth. ⁷⁴

In part, the Court’s assessment focussed on distinguishing the applicant from those in Mikulić and Gaskin. The core distinction, in the Court’s view was that the applicant in Odièvre was trying to trace a person rather than records of care or paternity. ⁷⁵ It observed that the applicant’s mother was a person who had expressly requested that information concerning the birth remain confidential. ⁷⁶ The applicant’s interest was pitted against other private interests: those of the birth mother, ⁷⁷ the adoptive family, the natural father and the natural siblings. In addition, the Court acknowledged the public interest in protecting the health of women and children, and preventing abortion, illegal abortion and abandonment.

In assessing the margin of appreciation the Court acknowledged that the majority of states did not have an anonymous birth law, but noted that some countries do not impose a requirement of registration ⁷⁸ and observed that child abandonment has led to debates about anonymous birth in some other countries. ⁷⁹ This diversity as well as the fact that various means were being ‘resorted to for abandoning children’ ⁸⁰ led the court to identify a margin of appreciation. Though it did not describe that as a wide margin, a wide margin can be implied from its language and its analysis, and its conclusion that France had not exceeded that margin. This conclusion was justified by reference to the fact that certain revisions to the system now in place in France made it more likely that women would waive confidentiality, and because the applicant had access to non-identifying information concerning her mother. ⁸¹

A strong, seven-judge, dissent was delivered in this case, which pointed to the need for consistent application of the reasoning from Gaskin and Mikulić. ⁸² The dissenters objected to the absolute nature of the French law, which in their view gave the mother ‘a discretionary right to bring a suffering child into the world and to condemn it to lifelong ignorance’. ⁸³ They pointed to a range of flaws in the reasoning of the majority ⁸⁴ and concluded that the system would only be justified if it operated in tandem with a process whereby cases could be considered individually, rather than absolutely prioritizing the rights of the mother in all cases.

Odièvre has been the subject of some controversy. ⁸⁵ A number of key weaknesses should be identified in the decision. First, the Court’s margin of appreciation analysis was dubious. Consensus or lack of consensus is generally a key factor in narrowing or widening the margin. Here, the Court failed to acknowledge the fact that France was at the time an outlier in Europe in providing for anonymous births, finding that it was ‘relatively rare’ for mothers to be entitled to give birth anonymously under domestic European legislation. ⁸⁶ The fact that some countries did not impose an obligation of registration is no basis for saying that a ‘diversity’ of views exist in respect of anonymous births. Furthermore, in its margin analysis, the Court did not consider the nature of the right being infringed, which, is generally highly pertinent to the breadth of the margin and, as acknowledged in the later case of Jaggi, identity is generally regarded as a highly important right that justifies a narrow margin. ⁸⁷

Second, the Court’s distinguishing of Gaskin and Mikulić is questionable. Its reasoning was that the applicant was unusual because she was trying to trace a person. ⁸⁸ This seems persuasively different to Gaskin – where care records alone were in issue – but not so different to Mikulić, where the applicant sought to establish paternity. As discussed above, Mikulić engaged both the tracing and recognition aspects of the right to identity. The Court seemed to be alluding to the fact that right the applicant sought to enforce in Odièvre would, if vindicated, have a significant effect on a third party. In fact, the third-party impact in Odièvre was not unlike Mikulić, which also entailed significant third party effects. There, vindication of the applicant’s right would potentially lead to the putative father being forced to undergo a DNA test and ultimately fixed with legal paternity and the consequences that flow from that. ⁸⁹ Arguably, in fact, the consequences for the third party were more severe in Mikulić than in Odièvre – the consequences of legal parenthood. Alternatively, perhaps the court was concerned with the fact that vindication of the Odièvre applicant’s right would involve the tracing aspect of the right as well as the recognition aspect of the right, because in Mikulić the applicant had already identified her putative father. This is a more stateable difference, insofar as there is potentially a more significant impact on the right to private life of the third party in a tracing situation than in a recognition situation. The scenarios are much more similar, however, than the Court in Odièvre was prepared to acknowledge.

This leads to the third key flaw in the Court’s reasoning: its failure to properly weigh the rights of the applicant, and to treat them with the same degree of respect as it accorded the rights of the applicants in Gaskin or Mikulić. The only possible way to distinguish the cases is by reference to the effect on the third party, but when one looks to the effects on the applicant, the infringement of rights is arguably more significant in Odièvre than in the paternity cases. The applicant in Odièvre suffered a very grave injury to her right to identity, and to her ability to develop her personality: she was deprived of knowledge of the identities of both parents from birth and for all time. Unlike the applicants in Mikulić and Jaggi she did not even have a suspicion as to the identity of her parents. It is quite difficult to imagine a more serious infringement of this type of Article 8 right. Despite this, the Court laid great emphasis on all potential countervailing factors that might justify anonymous birth, ⁹⁰ while setting little store by the egregious rights-infringement suffered by the applicant. The Court’s balancing analysis is entirely unconvincing as a result. A final, glaring, omission is the failure of the majority to consider whether the French State might have mitigated the blanket nature of the anonymity rule by providing for an independent arbiter, as suggested by the minority.

Odièvre is further undermined by the different, and superior, approach of the Court in Godelli v Italy. ⁹¹ There the second section considered a claim by a woman who had been adopted in Italy in 1949, pursuant to an Italian provision which allowed a parent to refuse to be named on the birth certificate and to keep their identity confidential. ⁹² In contrast to the French law in Odièvre, there was no process whereby the adopted person could seek a waiver of confidentiality from the mother, and the applicant had not been provided with non-identifying details about her birth mother. The Court reiterated the distinction between ‘tracing a person’ cases and tracing records which it made in Odièvre. Similarly, it reiterated its analysis of the competing public and private interests. In contrast to Odièvre, however, the Court identified a narrow margin and expressly recognized the role of identity in narrowing that margin:

The extent of the State’s margin of appreciation depends not only on the right or rights concerned but also, as regards each right, on the very nature of the interest concerned. The Court considers that the right to an identity, which includes the right to know one’s parentage, is an integral part of the notion of private life. In such cases, particularly rigorous scrutiny is called for when weighing up the competing interests. ⁹³

In contrast to Odièvre, the court emphasized the gravity of the interference with the applicant’s right, noting (citing Jaggi) that she had always searched for her mother and acknowledging the mental and psychological suffering she experienced. ⁹⁴ The Court observed that the applicant had not been allowed any information of any kind about her birth mother, unlike in Odièvre, nor did the law make any attempt to encourage the waiving of confidentiality. The Court found therefore, that the legislation had failed to strike a fair balance between the competing interests. ⁹⁵

The totality of the case law demonstrates that the right to identity under Article 8 is robustly protected. It is a right conceptualized in deontological terms, based on the Court’s fulsome acceptance of the ‘formative implications’ of knowledge of the circumstances of one’s birth and parentage, and the centrality of such knowledge to self-development. Odièvre displays significant weaknesses, and even if not wrongly decided, is patently an outlier when examined alongside the full body of case law on the right to identity.

Engagement of the right to identity in assisted human reproduction

There can be little doubt that the Article 8 right to identity is engaged in the case of anonymous donation. A person conceived through anonymous donation has the same vital interest in knowledge of his or her genetic parents and the circumstances of their birth as the applicants in cases like Mikulić or Odièvre. The case law demonstrate the Court’s deep concern with the interest in knowing one’s biological identity as an end in itself, linked to the Court’s deep commitment to the idea of official documents reflecting biological truth. It condemns legal structures that do not allow official records to reflect the biological truth, and particularly criticizes absolute rules that stand in the way of the truth being recorded, thereby recognizing both a tracing and a recognition aspect to the right. The Court’s deep concern for the formative implications of biological identity has clear application in the context of gamete donation. The donor-conceived person seeks to vindicate the tracing element of the right to identity by obtaining identifying details of their donor. To a more limited extent, he or she also engages the recognition aspect by seeking recognition of an identifiable person as their donor, and recognition of that donor in the relationship between the donor and the donor-conceived person.

While the ECtHR has not yet had the opportunity to adjudicate on this issue, the few cases where identity and assisted reproduction have arisen support the view that Article 8 is engaged in anonymous donation. This issue was dealt with in passing by the First Chamber in SH v Austria. ⁹⁶ This case concerned a challenge to aspects of Austrian law which prohibited egg and sperm donation. Identity issues arose because the Austrian government sought to justify its laws by arguing that a basis for the prohibition was that egg and sperm donation compromised the legitimate interest of the child in being informed about its descent. The Court acknowledged the importance of identity, which it justified by reference to, ‘its formative implications for his or her personality’ and which ‘includes obtaining information necessary to discover the truth concerning important aspects of one’s personal identity, such as the identity of one’s parents’. ⁹⁷ This would appear to be a clear acknowledgement that Article 8 is engaged in such circumstances. Looking to Odièvre, however, the First Chamber acknowledged that the right was not absolute and observed:

That the Austrian legislator could also find an appropriate and properly balanced solution between competing interests of donors requesting anonymity and any legitimate interest in obtaining information of a child conceived through artificial procreation with donated ova or sperm. ⁹⁸

The Grand Chamber made no comment on this issue and nor did it really arise on the facts of the case as it concerned egg and sperm donation generally, not anonymous donation in particular. As such, the comments of the First Chamber cannot be regarded as conclusive.

In recent years, the ECtHR has grappled with the issue of surrogacy and in that context the right to identity has assumed some significance. While the identity interest in question in surrogacy is quite different to that in the anonymous donation context, there is an important parallel in that the ECtHR has emphasized the importance of legal recognition of the biological identity of children born through surrogacy. Mennesson v France, ⁹⁹ concerned a French couple who travelled to the United States to enter into a surrogacy contract which led to the birth of twins. As French residents, they had no domestic opportunity to have a child through surrogacy, as even altruistic surrogacy arrangements are illegal in France. ¹⁰⁰ This surrogacy arrangement took place in California where surrogacy is fully legal, ¹⁰¹ and the intended father’s sperm was used along with donor eggs. ¹⁰² As a matter of Californian law, the intended parents were the legal parents of the child pursuant to a pre-birth order made by the Supreme Court of California. On their return to France, the French authorities refused to record the legal relationship between the parents and children in the French register of births, marriages and deaths, on the basis that surrogacy agreements were null and void on the grounds of public policy. The parents challenged this refusal to recognize the legal parent-child relationship, arguing that it violated the right to private and family life of both the parents and the children, as protected by Article 8 of the Convention. ¹⁰³

One might have expected that the Court would focus on the right to respect for family life, and the difficulties generated by a refusal to recognize the parent child relationship. ¹⁰⁴ Instead, the focus of the court’s analysis was the children’s right to their personal identity, an aspect of the right to respect for private life. ¹⁰⁵ The Court observed that while the parent-child relationship was recognized as a matter of US law, the refusal of the French authorities to recognize it created a contradiction which undermined the children’s identity within French society. ¹⁰⁶ The resulting uncertainty as to whether they would ever acquire French nationality was liable to have negative repercussions for the definition of their personal identity. ¹⁰⁷ The Court acknowledged the French policy of deterring citizens from entering into foreign surrogacy arrangements but said that the effects of the policy were not limited to the parents alone, but affected the children themselves and their right to establish the substance of their identity, including the legal parent–child relationship. This raised a serious question as to whether the child’s best interests had been adequately protected. This analysis took ‘on a special dimension’ ¹⁰⁸ where one of the parents was the child’s biological parent. The Court commented:

It cannot be said to be in the interests of the child to deprive him or her of a legal relationship of this nature where the biological reality of that relationship has been established and the child and parent concerned demand full recognition thereof. ¹⁰⁹

The Court found therefore that having regard to the child’s interests, the Article 8 rights of the children had been infringed. The harm the children suffered was to their right to development of their personal identity, both as a matter of nationality, and as a matter of genetic identity. The Court’s view was that the law’s failure to recognize these facets of their identity would impede the development of their personal identity. This approach was premised on the Court’s rich case law on the right to identity, discussed above.

In Mennesson, the court was not concerned with identity in the tracing sense, but purely with identity in the recognition sense. The children in question had no absence of information, but simply a lack of recognition. Though focussed on one of its two component parts, the case confirms the overall significance of the right to identity in the context of assisted reproduction. The engagement of the right to identity was decisive in causing the Court to apply a narrow margin of appreciation, even though no consensus applied across the Member States as to the to the domestic recognition of international surrogacy arrangements. The margin was narrowed because ‘a particularly important facet of an individual’s existence or identity’ ¹¹⁰ was at stake. Furthermore, the reason that the Court concluded that the correct balance of private and public interests had not been struck was because of the way in which the children’s development of their personal identity was affected. It was this interference with the children’s identity which was found to be contrary to their best interests.

In April 2019, the ECtHR handed down its first ever advisory opinion ¹¹¹ in response to a request from the French Court of Cassation. ¹¹² The Court effectively extended the holding in Mennesson to the intended mother, even in circumstances where there is no genetic link between the intended mother and the child. The Court found that there would be a breach of the child’s right to private life if this relationship were not legally recognized. Interestingly, the Court’s rationale was founded on the child’s welfare in a broad, practical sense, rather in the child’s right to identity. ¹¹³ Though the advisory opinion shifted away from the identity rights focus, it should not necessarily be seen as recanting Mennesson. Biological identity was central to Mennesson, but obviously not so central where the relationship in focus is that between an intended mother and a surrogate-born child. The cases should be read together as saying that while the recognition of parental status in surrogacy certainly is about more than just biological identity, the right to recognition of one’s biological identity is an important facet of the welfare of the child born through surrogacy.

When one views the rich body of case law on identity alongside the evolving jurisprudence on assisted human reproduction, it is clear that Article 8 is engaged in the context of anonymous gamete donation. The donor-conceived person who seeks to know their donor seeks to vindicate precisely the same right as the applicants in the cases discussed. Just as the ECtHR has accepted this as a general moral claim about the nature of the human condition in those established contexts, it must logically do so in the gamete donation context.

Anonymous donation as an impermissible interference with Article 8

Having established that Article 8 is engaged by anonymous gamete donation, one must tackle the much more challenging question of whether a regime permitting anonymous donation could be said to be a proportionate restriction of the donor-conceived person’s rights. This could arguably be analysed either through the lens of negative or positive state obligations. One could frame the claim of a donor-conceived person as concerning the state’s negative obligations in that states that have legislated for anonymous donation could be said to have actively interfered with the donor-conceived person’s right to identity. Equally, the interference could be framed in terms of positive obligations, in that a state that fails to ensure access on the part of the donor-conceived person to details of his or her donor has failed to take positive steps to vindicate the right to identity. This article will consider the interference as a failure of positive obligations for two reasons. First, this approach has dominated the identity case law to date, and second because examining the State’s obligations through the lens of positive obligations allows consideration both of states which have actively legislated to permit anonymous donation and those which have simply allowed it to happen via legislative inertia. ¹¹⁴ Assessing the State’s actions through the lens of positive obligations requires first a consideration of the margin of appreciation and second an assessment of the balance struck by the State between the public and private interests in play. A regime of absolute donor anonymity will first be considered, followed by the double track model.

Margin of appreciation

As regards the margin of appreciation, the case law suggests that anonymous donation is an instance in which there are two important factors pulling the margin in precisely opposite directions. The fact that no European consensus exists on the regulation of anonymous donation militates in favour of a wide margin, and this would undoubtedly be highly influential in the Court’s analysis. ¹¹⁵ However, the fact that the interference concerns the right to identity suggests that a narrow margin is appropriate. As discussed, the same situation pertained in Mennesson, where these factors pushed in opposite directions and ultimately the narrow margin won out. This provides a good basis for arguing in favour of a narrow margin in this instance. Indeed, the aspect of the right to identity which is engaged here must surely be more significant than that in Mennesson. In Mennesson, the children had no legal relationship to their biological father at French law, but at least, they knew who he was. That case concerned the recognition aspect of identity but not the tracing aspect. Anonymous donation engages both the tracing aspect and the recognition aspect, and therefore, can be said to constitute a more significant infringement of the right to identity. There is, therefore, a reasonable argument that the margin of appreciation to be afforded is a narrow one, but the significant divergence across Member States and the resulting lack of consensus means that the Court may be justified in identifying a wide margin of appreciation.

Striking a fair balance

The second part of the positive obligations analysis involves balancing the interests at stake. The core private interest that drives the rights claim is the right of the donor-conceived person to access facts relevant to their identity, including the details of their donor. However, any state defending its laws would likely argue that anonymity was in the best interests of the donor-conceived person, and that anonymous donation served the private interests of commissioning parents and donors. Any state defending a regime of anonymous donation would also undoubtedly argue that anonymous donation serves a public interest as well as serving these private interests. The most obvious aspect of the public interest that could be relied upon, is the claim that anonymous donation serves the public interest by promoting donation. In terms of weighing the interests at stake, much will turn on whether the Court acknowledges a public interest in anonymous donation or not. Here, a parallel can be drawn with Odièvre, where the Court set great store by the public interest in permitting a system of anonymous births. There, the importance of the system as a public good was essential to the way in which the Court drew the balance.

So, having identified these interests, how should the Court assess the balance drawn between them in a system of absolute anonymity? The best guide as to how the balance should be assessed can be found in the two bodies of case law discussed above: the paternity cases and the anonymous birth cases. To a large extent, the assessment of the balance may turn on which scenario is a better analogue for anonymous donation.

Turning first to the paternity cases, the position of the donor-conceived person is closely aligned with that of the applicant in paternity proceedings, except the interference with the donor-conceived person’s right to identity is more significant. He or she has no idea who their donor is, unlike the applicant in paternity proceedings who at least has a suspicion as to their identity. As previously discussed, therefore, the tracing aspect of identity is significantly engaged, while the desire for recognition of the donor to donor-conceived person relationship can also be said to engage the recognition aspect of the right.

Turning to the position of the donor as compared with the putative father, the key distinction is that the donor will have been promised anonymity, while the putative father will not. This may be seen as magnifying the privacy interests of the donor. However, the consequences of tracing and recognition are far more serious for the putative father: he will be subject to the full gamut of parental rights, including maintenance and succession rights. ¹¹⁶ By contrast, the donor will face no legal consequences, as he or she will remain only a donor as a matter of law. If the legal consequences are very different, are the social consequences any more similar? ¹¹⁷ In societies where gamete donation is lawful, ¹¹⁸ it seems likely that the general perception will be that donors fall into a different category to parents, so that while being identified as donor is not socially inconsequential, it is surely not so socially significant as being identified as a parent. A donor who refuses contact with a donor-conceived person will likely be viewed differently to a putative father who does the same. Taking these factors in the round, it seems that the paternity cases provide a reasonably good analogue for anonymous donation. The key difference – the guarantee of anonymity for the donor – is balanced out by the more serious infringement of the donor-conceived person’s rights, and the significantly less serious implications for the donor if disclosure were to take place.

Moving to the anonymous birth analogy, despite some superficial similarities, there are clear distinctions that set anonymous donation and anonymous birth far apart from one another. The first key distinction can be found in the public interest justification for anonymous birth. As observed in Odièvre, anonymous birth is designed to prevent more serious wrongs, such as illegal abortion, infanticide and abandonment. In that sense, it might be characterized as a necessary evil. Being deprived, forever, of the details of one’s birth might not be ideal, but it beats abandonment or infanticide. As a matter of public policy, the State might legitimately favour anonymous birth as a last resort in a crisis pregnancy. Anonymous gamete donation cannot be characterized as addressing a necessary evil in the same way. It is not a response to a crisis pregnancy, but rather an independent course of action that the parties seek out and enter into freely and voluntarily. There is no sense in which it presents a solution to a complex, unintentional, crisis scenario.

As regards the position of the adopted person versus the donor-conceived person, their interest in knowing their origins is very similar. A potential distinction may be drawn on the basis that the adopted person is deprived of knowledge of their gestational mother as well as their genetic mother. While this is true, there is nothing in Odièvre to suggest that the interest in knowing one’s birth mother is driven more by her gestational role that by her genetic role in the child’s identity. At the very least, the genetic contribution is an important part of motherhood. ¹¹⁹

Crucially, the relative positions of the donor and the birth mother are very different. Women like the mother in Odièvre are generally accepted to have engaged in anonymous adoption as a response to the stigma attaching to their situation, a pregnancy that was unwanted or unacceptable for some reason. Donors do not engage in donation to avoid the stigma of their circumstances. Depending on the regulatory system in place, they may donate for a suite of reasons, some of which include financial gain, but always freely and voluntarily. ¹²⁰ The woman who seeks anonymous birth is in a fundamentally vulnerable position, in contrast to the gamete donor. One might argue that if a gamete donor has made a donation on an anonymous basis, then there is nothing voluntary about subjecting that person to identifiability and the prospect of being contacted by their biological offspring. To this extent, there may be some parallels with the case of anonymous birth, but there is no doubt that at the time of the original guarantee of privacy, the birth mother and the donor are entirely differently situated. Furthermore, as alluded to above, the location for this analysis is a society that permits lawful gamete donation. There is no reason to assume that there will necessarily be any stigma attached to being a donor, or if there is, that it would come in any way close to that experienced by a woman who feels the need to engage in anonymous birth.

Therefore, the outcome of the rights balancing exercise in anonymous donation is entirely different to that in anonymous birth. As discussed, there are good reasons to say that Odièvre was wrongly decided, but even if it was not, anonymous birth can readily be distinguished from anonymous donation. Applying the totality of the identity rights case law, it is clear that the balance should conclude that anonymous donation is an unjustifiable interference with Article 8. The donor-conceived person suffers a very significant infringement of their right to identity, centrally in terms of the tracing aspect but also in the recognition aspect. The donor’s privacy interests in non-disclosure may be significant but that significance derives primarily from the guarantee provided to the donor, not because of any legal or social consequences that would likely flow from their being identified to the donor-conceived person. This is in significant contrast to both the putative father in the paternity cases, or the birth mother in anonymous birth, who would suffer significant legal and/or social consequences if their identities were disclosed. Finally, the public interest in anonymous donation is questionable, ¹²¹ and if it exists at all, cannot be framed as on a par with the public interest in anonymous birth.

Ultimately, the rights balancing assessment will be strongly influenced by the margin of appreciation. However, the extent of the infringement of the rights of the donor-conceived person and the comparatively insignificant effect on the donor of removal of anonymity mean that even if a wide margin is identified by the Court, the above analysis still provides a compelling basis for the finding that anonymous donation infringes Article 8 ECHR. This is especially true in the light of the comments in Jaggi that interferences with the right to identity call for particular rigorous scrutiny.

If absolute anonymity infringes Article 8, is there any reason why a double track regime would not? On one hand, one might expect it to be viewed more favourably because the ECtHR is uncomfortable with absolute rules and blanket bans, and happier with laws that use exceptions to draw a balance between rights. ¹²² However, the difficulty is that a double track system does not actually vindicate the rights of donor-conceived person any more than an absolute anonymity regime. Because some persons will still be born under conditions of absolute anonymity arrangement, those persons will suffer just as serious a rights infringement as people born within absolute anonymity regimes. Overall, while the double track regime may superficially seem like an attractive compromise, in reality it produces much the same rights-balancing analysis and should, equally, be regarded as failing to strike a fair balance between the rights in question, and constituting an unjustifiable interference with Article 8.

Remedies

When a State makes the decision to end anonymous donation, this raises the thorny question of whether it should be abolished on a retrospective basis or not. Retrospective abolition would open records of donors who had made a donation subject to a guarantee of anonymity. Prospective-only abolition would not open donor records from the past, but would abolish anonymity going forward. In many cases, anonymity has been abolished by states on a prospective basis only. ¹²³ Difficult as this question is, it is not necessarily one for the ECtHRs. States are obliged under Article 46 of the ECHR to undertake to abide by the final judgment of the ECtHR in any case to which they are parties. Execution of the judgement is supervised by the Committee of the Ministers. The primary role of the ECtHR in its judgment is to make a finding as to whether there has been a breach or not, rather than to direct the State as to the corrective measures to be taken to remedy that breach. Historically, the Court did not make directions as to corrective measures, ¹²⁴ though it will now on occasion indicate what general and individual measures the State should take to remedy a Convention violation, however, this is a power that is used sparingly. The Court has reiterated that its judgment are essentially declaratory in nature and that in general it for the State to choose, subject to supervision by the Committee of the Ministers, how the domestic legal order will remedy the violation. ¹²⁵ Accordingly, it would be open to the ECtHR to make a declaration that a regime of anonymous donation had violated the rights of the applicant, but not decide the question of whether the State was required to change the law on a retrospective basis. The ECtHR might also choose to make an award of damages to the applicant under Article 41, which compensation might be designed to reflect the fact that if the law changed on a prospective basis only, the individual right of the applicant to access details of his or her donor would never be vindicated.

Conclusion

In presenting the legal analysis of anonymous donation, this article has not delved into the political and institutional questions regarding the role and approach of the ECtHR. While a full consideration of such issues is outside the scope of this article, there is undoubtedly an important political question as to whether or not gamete donation is an issue in respect of which the ECtHR will be willing to intervene and set a minimum human rights standard in Europe. One might ask whether gamete donation will fall to be treated like abortion – where the ECtHR made clear that despite virtual European consensus, it would not intervene in the domestic laws of Member States like Poland and Ireland ¹²⁶ –or whether it may be treated akin to domestic recognition of parenthood in international surrogacy arrangements. In the latter instance, the Court has indicated a tolerance for domestic prohibitions on surrogacy, but has robustly required states to recognize parenthood arising from international surrogacy arrangements despite an absence of consensus on the issue. ¹²⁷ If the ECtHR is inclined to weigh in on this issue, and find that anonymous gamete donation breaches Article 8, there is no doubt that this conclusion would be eminently legally justified.