March 17, 2021 | Miscellaneous

Confidentiality of Medically Assisted Procreation: should it be lifted?

In Quebec, the anonymity of sperm donors is protected. In accordance with article 542 of the Civil Code of Quebec, nominative information relating to the medically assisted procreation of a child is confidential. Sperm donors have no legal rights or obligations with respect to a child conceived as a result of their donation. That being said is that fair to the child? Is there one fundamental right that is more important: the donors’ right to privacy or the child’s right to know their biological origins? Confidentiality is the rule, which the child may argue put their rights and interests secondary. The legislation at this point is difficult to reconcile with the modern conception of the child as an autonomous subject of law. According to this concept, any decision with respect to the child should be made in their best interest and with respect to their rights. Therefore, how can we conclude that a child being barred from knowing their full identity is in their best interests?
 
Because of the principle of confidentiality, there are many children who are distraught by the fact that it is impossible to trace their biological origins. It is understandable for a child to want to fill this void in relation to their identity. In fact, there are several provisions in the Convention on the Rights of the Child that demonstrate the importance of knowing one’s origins and preserving one’s identity (i.e. art. 7 and 8). Thus, it is reasonable to ask: why am I the way I am? However, without biological references, the construction of one’s identity can become rather complex.
 
It is important to note that the only caveat to confidentiality is found in the second paragraph of art. 542 C.C.Q., which states that information may be transmitted confidentially to medical authorities when there is a risk of “serious harm” to a child’s health. This provision, which has a very limited application, leaves some room. For example, can a child born from a sperm donor inquire about their medical history as a preventive measure? The law does not provide a clear answer. Some argue that children born from medically assisted procreation should have the same access as anyone else to this information that could prevent diseases or complications related to these diseases.

Another argument that is in favour of lifting confidentiality in Quebec is based on the disparity created between adopted children and children born from medically assisted procreation. Under art. 522 C.C.Q., all children are presumed to be equal, regardless of the circumstances surrounding their birth. However, the other rules of the C.C.Q. reveal that children born of a sperm donation do not have the same rights as adopted children with respect to access to information about their origins. While an adopted child who is 14 years or older or who is 18 years old has the right to search for his or her biological parents (if the biological parents have consented) (art. 583 C.C.Q.), a child born from a sperm donation does not have this same rights. As far as the children are concerned, there are some contradictions in Quebec law.
 
The law on medically assisted procreation in Quebec creates limitations in comparison to adopted children. A potential solution would be to allow donors to consent to disclosing their identity, time will tell how this will evolve. 

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