Anonymous gamete donation and Article 8 of the European Convention on Human Rights: The case for incompatibility

Abstract

It has long been suggested that anonymous gamete donation may breach the rights of donor-conceived persons under Article 8 of the European Convention on Human Rights (ECHRs). However, this has never been definitively addressed by the European Court of Human Rights (ECtHRs). The purpose of this article is to comprehensively set out the argument that anonymous gamete donation constitutes an unjustifiable interference with Article 8 ECHR. The article analyses the rich jurisprudence of the ECtHR on the right to identity in the fields of paternity and anonymous birth, and argues that the right has a ‘tracing’ element and a ‘recognition’ element, both of which are engaged in the anonymous donation context. It is argued that despite the absence of consensus across the Member States, proper analysis of the application of Article 8 should conclude that regimes that permit anonymous donation fail to strike a fair balance between competing rights and interests.