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Supreme Court of Germany decision XII ZR 201/13

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Supreme Court of Germany decision XII ZR 201/13

German Supreme Court (Bundesgerichtshof)

BGH, Urteil vom 28. Januar 2015 – XII ZR 201/13

28 January 2015

Instrument(s) Cited:
German Constitution (Grundgesetz), Articles 1(1), 2(2), 6(1) & (2), 12(1)
German Civil Code (Buergerliches Gesetzbuch), § 242

Case Summary:
The decision was handed down in the case of two sisters, aged 12 and 17, who were both fathered from donor sperm and who had appealed to the Supreme Court after a reproductive clinic refused to provide the biological father’s identity, as the girls’ legal parents had initially waived the sisters’ right to know who the donor was.

Issue and resolution:
Right to know parents. Whether children conceived through artificial heterologous insemination have a right to be informed of the identity of the sperm donor father by the fertility doctor. The Court decided that children of all ages have the right to know the identity of their donor father, and that the right of the donor to remain anonymous will generally be trumped by right of the child to know both his or her parents. The lower court’s decision was overturned and the case referred back to the lower court.

Court reasoning:
The Court held that a right to know one’s parents does not require any minimum age of the child. Yet, the Court applied the condition that parents must be able to prove that the child has requested the information.

The Court  derived the right of the child to know his or her heritage from Articles 2(1), 1(1) of the German Constitution which comprise the so-called ‘common personal right’ of each individual. The Court reasoned that while this constitutional right can usually only serve as a claim for information directed at the authorities, it can also apply between two private individuals if a civil claim exists between the parties. The Court here based the right of the child to information by the fertility doctor on the principle of good faith enshrined in § 242 of the Civil Code. The Court argued that the contract entered into by the parents and the doctor constituted a third-party beneficiary contract for the benefit of the child and that this contract could be the basis of the right of the child to know the donor’s identity.

The Court dismissed the lower court’s argument that a minimum age of 16 should apply to children seeking information about their donor as the judges saw no foundation in existing laws to support this age requirement. The judges argued that it had to be assumed that a child could have a desire to know his or her parents independent of his or her age, and that naturally such a desire does not only emerge when a child turns 16.

The Court argued that notwithstanding the above, possible negative effects on the private life of the donor must be taken into account, but that whether it is reasonable to require of the doctor to give away information about the identity of a donor must be decided on a case-by-case basis after a comprehensive assessment of the particular fundamental rights concerned. The Court found that the right of the child to know bears “generally greater weight” than the donor’s right to remain anonymous.

The Court determined that the right of the sperm donor to informational self-determination, i.e. deciding himself which details about his private life to disclose to the wider public, based on Articles 2(1), 1(1) of the German Constitution, was trumped by the right of the child to know his or her heritage. The Court inter alia argued that it had to be taken into account in the balancing test between the fundamental rights of the child and the donor that the donor had willingly participated in the procreation of the child and that he had to accept a certain social and ethical responsibility towards the child. In addition, the Court reasoned that the donor’s economical interests were insignificant as part of the balancing test.

The right of the child to know his or her heritage was seen by the Court as also trumping the right of the doctor not to disclose information about his patients as part of his or her professional freedom derived from Article 12(1) of the German Constitution.

The decision has sparked public debate in Germany on the need for legislative reform to clarify paternity of biological fathers and legal fathers of children conceived through artificial heterologous insemination, which should address questions of child support, nationality and succession. 100,000 people who were fathered by sperm donations are estimated to currently be  living in Germany. Between 1,500 to 5,000 children are conceived annually using donor sperm.

Until this decision, German courts had assumed that children of a sperm donor could not request the identity of their biological father until they reached the age of 16. News reports on the decision are available here (German) and here (English).

Article 7 of the Convention on the Rights of the Child affirms children’s right to know their parents, as far as possible, without any distinction based on age, and States should not set arbitrary age limits to this right. Most other countries which have banned donor anonymity, however, give children the right to access such information once they reach the age of 16, as is the case in the Netherlands. In the United Kingdom non-identifying information about the donor can be obtained at 16, and identifying information at 18. Exceptionally, the age limit in Austria is set much lower at 14 years of age. In Sweden, legislation provides for the right of children who are deemed “sufficiently mature” to receive the information, and formal guidance from the National Board of Health and Welfare indicates that children in the upper teens should be considered so.

Link to Full Judgment:

This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.