Donor children and their mothers litigating over the disclosure of their sperm donor's identity are largely vindicated by the District Court of The Hague. Stichting donorgevens kunstmatige bevruchting (SDKB) and the clinic must assess whether the donor's reasons for wanting to remain anonymous are weighty enough. If not, they must disclose the donor's identity to the children. Thus, the court did not rule that that identity must be disclosed now.
The children were born after artificial inseminations in the years 1997-2000. At this time, sperm donations were usually made anonymously. However, the mothers consciously chose sperm from a donor who had agreed with the clinic that his identity could be disclosed. He was only allowed to change this later if there were compelling reasons for doing so.
In 2004, the Artificial Fertilization Donor Data Act (the Wdkb) came into effect.
The basic premise of this law is that it is no longer possible to donate seed anonymously. From the age of sixteen, donor children can obtain the donor's identity information via SDKB, unless there are compelling interests of the donor not to reveal his identity.
For donors who had donated seed before this law was in place, such as the donor in this case, the law makes an exception. They may refuse to have their identity revealed without giving any reason. In doing so, the Wdkb makes no difference between donors who had donated anonymously or a donor who had previously consented to his identity being revealed.
The children in this case first asked SDKB for the identity of the donor. They did not receive it because the donor informed SDKB that he objected to his details being provided. They then asked the clinic for these details, which also declined this request.
The court ruled that SDKB may not apply the exception rule in the Wdkb in this case because it violates the children's right to know from whom they are descended. This right is enshrined in international treaties (Article 8 ECHR and 7 CRC). SDKB must therefore apply the main rule of the Wdkb in this case. This means that SDKB must provide the identity of the donor to the children, unless the donor has compelling interests in remaining anonymous. SDKB must therefore go and inquire and assess this.
The court further ruled that the clinic must comply with its agreements with the mothers and therefore must also disclose the donor's identity to the children, unless compelling reasons of the donor prevent it.
Whether SDKB and/or the clinic actually disclose the donor's identity is not determined by this. That depends on the donor's reasons for not consenting. These are not yet known.
