Constitutional Court rules donor anonymity provisions are unconstitutional
The Constitutional Court of Belgium has ruled that the legal provisions preventing donor-conceived children from obtaining information about their donor from fertility centres are unconstitutional. However, the court has decided that the current rules will remain in effect until 30 June 2027 to allow lawmakers time to establish "a fair balance" between the rights of all parties involved.
At present, two legal provisions bar fertility centres from sharing information about the reproductive cell donor with the child conceived through those cells.
According to a press release from the court, these provisions are unconstitutional because "they give absolute priority to the interests of the donor, to the detriment of the interests of the conceived child".
Broad interpretation
The court was responding to a question from the Dutch-speaking court of first instance in Brussels. A woman and her daughter had requested all available information about the donor from the hospital where the reproductive treatment took place.
Specifically, the court inquired whether these provisions in the Criminal Code (Article 458) and the 2007 Act on Medically Assisted Reproduction (Article 57) conflict with the right to respect for private and family life, a right protected by both the Belgian Constitution and the European Convention on Human Rights.
In its ruling, the court stated that this right should be interpreted broadly, including the right to identity, personal development and the corresponding right to know one’s biological origins.
Finding a balance
At the same time, the court acknowledged that the law’s intention was to serve "legitimate objectives", such as preventing a shortage of donors. However, it found that the law fails to strike a "fair balance" between the interests of donors and those of the children conceived with their reproductive cells. Currently, the donor's interests are given "absolute priority" over the child's.
The court also pointed out that under current provisions, it is impossible for a donor-conceived child to obtain any identifying or non-identifying information about the donor from the fertility centre. There is no mechanism in place to contact the donor, either directly or indirectly, to ask if they would agree to waive their anonymity.
Although the court declared the provisions unconstitutional, it maintained their effects until new legislation is passed or until 30 June 2027 at the latest. "It is up to the legislator to develop legislation that establishes a fair balance between all the interests involved," the court said.
© PHOTO IMAGO
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