Gamete Donation
Egg donation under Spanish law
Under Law 14/2006 , the donation of gametes and pre-embryos for reproductive purposes is structured as a gratuitous, formal and confidential agreement entered into between the donor and the authorised centre.
The arrangement is founded on the concept of "donation" and therefore can never have a commercial character. Any compensation that may be established must strictly cover only the physical inconvenience and the travel and work-related expenses arising from the donation. The donation must be anonymous, and the confidentiality of donors' identifying data must be guaranteed by gamete banks, as well as, where applicable, by donor registries. Notwithstanding the mandatory requirement of anonymity, children born through donation have the right, personally or through their legal representatives, to obtain general information about the donors that does not include their identity. Recipients of gametes and pre-embryos are entitled to the same right.
Only in exceptional cases, where extraordinary circumstances give rise to a real and present danger to the life or health of the child, or where required under criminal procedural law, may the identity of donors be disclosed, and only where such disclosure is strictly necessary to avert the danger or achieve the lawful purpose in question. Any such disclosure shall be strictly limited in scope and shall not in any circumstances entail public disclosure of the donors' identities.
The maximum permitted number of children born in Spain from gametes provided by the same donor must not exceed six. In order to effectively maintain this limit, donors must declare with each donation whether they have made previous donations, the conditions of those donations, and the date and centre at which any such donations were made.
It is the responsibility of each centre or service using donor gametes to verify the identity of donors in a reliable manner, as well as, where applicable, the consequences of previous donations in terms of children already born as a result. If it is established that the number of such children exceeds the statutory limit, the samples from that donor must be destroyed.
The law provides for the establishment of a National Donor Registry, whereby the verification of such data may be carried out by consulting the relevant registry.
This registry will also record the children born from each donor, the identity of the recipient couples or women, and the original location of both donors and recipients at the time of the donation and its use.
Issues of genetic identity arising from donor anonymity
Current Spanish legislation establishes donor anonymity in near-absolute terms: only in cases of serious health risk or criminal proceedings may the identity of the donor be disclosed. The aim is to prevent any direct connection between donor and recipient, and to avoid the development of a relationship beyond the strictly biological. In this respect, Spain has adopted a system that offers the highest possible protection of donor confidentiality. That said, while this approach is conservative on the question of donor identity, in practice the same rigour is not being applied to the monitoring of donations. Although the law has provided for the operation of a Donor Registry, indeed, one has been envisaged since 1988, it has yet to be put into operation. Such a registry would help mitigate the risk of consanguinity among individuals born from the same donor, since, although the law limits each donor to six children, there is no reliable mechanism in place to prevent the same donor from donating repeatedly and generating an indefinite number of offspring. At present, oversight is limited to the gamete banks of authorised centres, with no coordination between them and no centralised database linked to those of each Autonomous Community (Spain's regional governments).
Given this lack of oversight, it is understandable that there is growing demand for greater access to information about donors, including their identity, as a means of reducing the risk of consanguinity, among other concerns.
In any event, there is a clear need to establish a Donor Registry to mitigate the effects of large numbers of people being conceived from a single donor. Equally, the rules governing anonymity and confidentiality need to be reviewed, so that anonymity may be lifted where the donor consents to the disclosure of their identity in response to a specific, express request from a recipient. Any such framework must, in all cases, preserve the spirit of donation, meaning that disclosure cannot give rise to any legal relationship beyond the purely biological, and must therefore carry no implications for parentage rights or family law more broadly.
As noted, this is not yet possible under current Spanish law. However, a number of neighbouring countries do permit access to donor identity, provided the donor gives consent. Together with a reasonable cap on the number of children born from a single donor and a system of oversight through a Donor Registry, these elements appear to be the foundations on which a unified EU regulatory framework for the donation of gametes and pre-embryos should be built.
Contact Maria Serra, family lawyer, mediator and civil law specialist in Barcelona:
