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Germany: Disclosure of Sperm Donor

(Aug. 13, 2013) On February 6, 2013, the Higher Regional Court of Hamm held that a child has the right to obtain information on the identity of the anonymous sperm donor through whom the child was conceived (Oberlandesgericht Hamm, Feb. 6, 2013, docket no. I-14 U 7/12, JUSTIZ-ONLINE).

The case concerned an in vitro fertilization that took place in 1991 and that involved several anonymous sperm donors. The parents of the child had contractually agreed to respect the anonymity of the sperm donors. In 2011, at the age of 20, the young woman who had been conceived in this manner sued the physician at the in vitro fertilization clinic, demanding disclosure of the identity of the sperm donor. The physician alleged, among other defenses, that several donors were involved and that the records had been destroyed after a required ten-year holding period. The trial court held for the defendant. On appeal, the Higher Regional Court held for the plaintiff and reversed the trial court by ruling that the child’s interest in knowing the identity of her genetic father outweighed the privacy rights of the sperm donors. It held the treating physician responsible to make every conceivable effort to obtain this information and pass it on to the plaintiff. (Id.)

The Higher Regional Court based its decision on the duty to perform a contract in good faith that is expressed in section 242 of the Civil Code (Bürgerliches Gesetzbuch (repromulgated Jan. 2, 2002, as amended), BUNDESGESETZBLATT I at 738, in English translation), which it found applicable because the child was a third party beneficiary of the contract between the physician and the parents and the physician therefore owed duties of care to the child. The Court held that the child’s constitutional rights of personhood, and the right included therein to know her biological parents, outweighed privacy rights of the sperm donor. In emphasizing the child’s right to information on her genetic parents, the Court relied on a 1988 decision of the Federal Constitutional Court (Bundesverfassungsgericht, 1 BvR Jan. 18, 1988, docket no. 1 BvR 1589/87, JURIS online legal database, by subscription).

The decision of the Higher Regional Court sparked much interest in the legal literature, with some commentators finding fault with the decision (Sandra Fink & Klaus-Jürgen Grün, Der Auskunftsanspruch über die Abstammung des durch heterologe Insemination gezeugten Kindes gegen den Arzt, NEUE JURISTISCHE WOCHENSCHRIFT 1913 (2013)) and others agreeing with it in principle (Thorsten Kingreen, Auskunftsanspruch des im Wege der heterologen Insemination gezeugten Kindes, ZEITSCHRIFT FÜR DAS GESAMTE FAMILIENRECHT 641 (2013)). There is much agreement, however, that the decision will have a major impact on privacy rights, sperm donorship, and the right of personhood and on the desirability of adoption of a statutory regime to deal with the issues involved.