Donor affair: low tide in the seed bank?

5. June 2013
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So called donor children, children who were produced using heterologous insemination, have the right to know who their biological father is – a German court has decided. Putting aside some words of support expressed, many say that they know: the era of sperm donation has been hereby terminated.

Father’s Day: a good time to dispense with too hasty opinions on questions of how to deal professionally with the concerns of donor children and their families. Sarah P has been going through the legal machinery for years because she wants to know who the sperm donor to which she owes her existence is. In the end, a court gave her this right. According to the European Society of Human Reproductive Medicine and Embryology (ESHRE), five million “test tube babies” were born worldwide up until 2012.

Since the age of percutaneous testicular sperm aspiration, the number of heterologous donations has been displaced slightly in favour of the other reproductive medical options. Not taken into account in published figures are children, for example, produced through all sorts of “insemination tourism”. There are in this area still appropriate scientific investigations lacking. This is no surprise, because the subject is often burdened with shame. So that sperm donation need no longer remain a taboo subject, it is ultimately then also the responsibility of everyone.

Does this really surprise anyone?

The question now is why donor children so quickly turn up under a kind of suspicion that their search for identity is almost inevitably linked to monetary claims. The association of donor children, for example, has included a desire for regulations on the protection of the biological father as part of its political demands. The OLG Hamm maintains that “descent (…) firmly sets in place the genetic aspects of the individual, defines personality and within the framework of consciousness occupies a key position in finding individuality and understanding of oneself”. People conceived using a donor insemination (DI) do not possess this key. In any case, few know about the particular circumstances of their conception. However, the need for clear rules on this is increasing, as the number of donor children now becoming adult is increasingly large. And more and more of them want to find certainty.

Complex network of relationships and interests

In contrast to “conventional” conception, the situation for heterologous insemination is much more complex. Several fates are linked by the act of conception. Everything comes together here for those people conceived by artificial assisted conception – because no one else has the affects of DI throughout his or her entire personality in such a way. Both the social parents, whose wish for insemination is crucial in the matter, as well as the sperm donor, who may have his own family, become mother, father and father. What’s more, members of the medical staff are inextricably linked to this newly created life.

Half siblings can exist in the family of the donor as well as in other separate families. Therefore, in many countries a maximum number of children is set who are able to  be conceived from the one donor – the fear of incestual relationships unwittingly taking place is the basis for this. In Germany only heterosexual couples are allowed to take the path to sperm donation away from childlessness. In other countries, single women and lesbian couples are able as well. Concerns about genetically transmitted diseases for some donor children, in addition to the knowledge of their roots, also play a role.

Different countries, different rules

As so often is the case, getting the bigger picture helps. The lifting of donor anonymity is of course not only a subject in Germany. Dealing with reproductive medical procedures varies among different nations quite starkly, some large cultural, ethical, moral and legal differences play a crucial role. In some countries the official lifting of anonymity has already taken place. Sweden already made a beginning in 1985 – a year before official IVF authorisation in Germany. In the Netherlands, Austria and the UK as well, the children of sperm donors have the stipulated right to know the identity of their fathers.

In the U.S., donors and recipients can choose whether they prefer an anonymous donation or to disclose identity. Often also incorporated are specific rules relating to any financial claims made to the fathers or challenging legitimacy (of the legal and “biographical” fatherhood). Even today, it is not readily possible to make demands of the biological father, if he has been located. These problems do not arise in all countries though. Italy offers a relatively simple solution: heterologous insemination is prohibited.

There never has been a legal basis for donor anonymity

Basically, those who after the OLG Hamm judgements predict in online forums the end of the DI have in all likelihood been personally affected only in the rarest of cases. If they were, they would in all probability know that there has never been a legally binding regime for the right to donor anonymity in Germany. Most agreements have been struck between sperm banks and donors, but would not be or have not been determined by the court as having higher standing than any legitimate interest of the child in relation to knowing his or her father. Since a first court ruling in 1989, in which the right of the child to knowing origin was awarded (in this case sperm donation itself was not at the heart of the matter), there have been court decisions in favour of those affected who did not know their fathers. The right of disclosure regarding the child usually weighs heavier than the affected individual rights of the father. For all donor children born before 2007, however, all too often the unclearly defined retention period of the donor data represents a hurdle.

The assumed certainty that a shortage of donor sperm would occur due to a lack of such experiences in Germany can hardly be described as fact but at best might be called a mere prediction. Experiences from neighbouring countries that have undertaken similar processes already exist. After the lifting of anonymity Sweden initially recorded a drop in donations, 10 years later however there was also  renewed increase.

Great Britain five years after the lifting of donor anonymity

From the 90s donor children rights of disclosure to information have been discussed extensively in the UK. Finally in 2005 the law was changed in favour of a repeal of donor anonymity. Again, the fears relating to donor numbers were great. A study shows, however, that although the number of inseminations carried out significantly decreased, the number of donors increased significantly even within 5 years at one centre. The study is based on retrospective analysis of data from the Women’s Hospital of King’s College Hospital. The clinic is affiliated with the largest centre for DI in the UK. It recruited its own donors, but also uses donations from across the country. The results show two dips in the overall donor numbers in the country: one after the lifting of anonymity in 2005 and an even larger one after 2007.

The second dip marks in all probability the prohibition of financial compensation for donors – what has been allowed since is only compensation of costs incurred. The researchers maintain – that while true that there has been overall significantly less IUI and IVF done since 2005, there were significantly more “in-house” donors recruited. Data from the Human Fertilisation and Embryology Authority (HFEA) also shows that the number of donors has nearly doubled again since 2005. These and other studies suggest that donors can be won perfectly well through increased advertising and better information on the legal situation. Consultations often lead to a reduction of anxiety and therefore of barriers that hinder making a donation. Difficulties persist nevertheless in the recruitment of donors from ethnic minorities in Britain. What has proven to have changed since then is the profile of the donor.

Which type of men donate sperm?

What has changed since the abolition of donor anonymity is the donor profile.  Previously, it was young men who were mainly the donors, these are now more often men between 35 and 40, who in many cases already have a family. Financial motives are not the factor uppermost in mind for this group, but rather the will to help. Single men and/or gay donors were generally more open to the lifting of anonymity than men in committed relationships. Contrary to common prejudices many of the men are interested at some later point in the welfare of their biological children. The most serious arguments against sperm donation are moral – including personal doubts about the correctness of the action as well as concerns for the child, for ones own partner and also generally for society.

What else can be done

In Germany this is currently being hotly discussed. Both the working circle “Donogene Insemination” under Professor Katzorke and the small association “Spenderkinder” have issued a press release and counter opinion in the wake of the court ruling. Differentiated policies on the topic FDI can be accessed on the websites of the working group “Donogene Insemination” as can information for potential donors. It is a welcome event that the newer studies show: in this quest to achieve success through advertising and to make active recruitment strategies work, there is clearly room for improvement. Only once this path has been exhausted can stable predictions be made and limiting factors recognised.

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