Abstract

Keywords

Assisted reproductive technologies; disclosure; donor-conceived child; embryo donation; gamete donor.

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1 Introduction and background

Since the latter part of the 20th century, the development of assisted reproductive technologies (ART) 1

* Nicole Bouah. LLB LLM (UWC). Associate, Apex Fund and Corporate Products SA. Email: 3643523@myuwc.ac.za . ORCiD: https://orcid.org/0000-0003-0447-3916.

** Carmel Jacobs. LLB (UWC) LLM (UP) PhD (Uni Leiden). Senior Lecturer, Department of Private Law, University of the Western Cape, South Africa. Email: cajacobs@uwc.ac.za. ORCiD: https://orcid.org/0000-0001-5148-4269.

1 ART is defined as "all treatments or procedures that include the in vitro handling of both human oocytes and sperm or of embryos for the purpose of initiating a pregnancy". See Zegers-Hochschild et al 2009 Fertility and Sterility 1521.

Embryo donation refers to "the transfer of an embryo resulting from gametes that did not originate from the recipient and her partner". 5

5 Zegers-Hochschild et al 2009 Fertility and Sterility 1522.

number of countries treat embryo donation as gamete donation due to the gestational link, which means that from the point of birth the recipient couple are the sole legal parents. 14

14 MacCallum 2009 https://www.bionews.org.uk/page_92056 .

To date, the sole consideration surrounding embryo donation has been about what the donating couple and receiving couple desire, not what the resulting child's rights or needs are. 17

17 Faust 2019 https://thefederalist.com/2019/12/04/why-embryo-adoption-damages-childrens-rights .

This research will unpack and analyse the various components of what the concept of the right to identity encompasses. It will argue that both national and international law do not consider the unintended consequences that life through embryo donation brings. Furthermore, it will argue that it is in the best interests of the child that they are provided with the genetic and identifying information revealing their genetic origins at some point in their life. Moreover, how this right is impacted by the process of embryo donation needs to be examined. But first it is necessary to distinguish embryo donation from surrogacy and gamete donation.

2 Surrogacy and gamete donation versus embryo donation

A distinction can be drawn between surrogacy and embryo donation. Under South African law, surrogacy is regulated by Chapter 19 of the Children's Act and requires a lawyer to draw up a contract which must be confirmed by the High Court before the surrogacy procedure can commence. 19

19 Van Niekerk 2018 https://www.golegal.co.za/surrogacy-south-africa-children .

the child is not genetically linked to either recipient, but has a gestational link with the recipient mother who is able to take prenatal care without relying on a birth mother. The laws of parentage are clearly set out for all parties to the surrogate motherhood agreement, 21

21 Section 287 of the Children's Act 38 of 2005 (hereafter the Children's Act).

At the same time, embryo donation is also different from gamete donation, where the resulting child has a genetic link to one of the recipients. In the case of egg donation the child born is genetically related to the father but not to the mother 24

24 Imrie et al 2019 Child Development 1333.

3 Definition and scope of the concept of identity

The right to know one's identity is not a novel concept. 26

26 McCombs and Gonzalez 2007 https://scm.oas.org/pdfs/2007/cp19277.pDF 5.

The right to identity was first recognised under Article 7 and Article 8 of the Convention on the Rights of the Child (CRC). 28

28 Besson 2007 IJLPF 143.

States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. 29

29 Article 8(1) of the UN Convention on the Rights of the Child (1989) (hereafter the CRC).

Article 8 originated in response to the abduction of children under Argentina's military regime. 30

30 Clark 2012 Ga J Int'l & Comp L 626.

The child's right to protection of their legal and national identities is provided for under Article 7 of the CRC 37

37 Article 7(1) of the CRC: "(1) The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents. (2) States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless."

The child's right to biological and familial identities 40

40 Stewart 1992 Fam L Q 226.

In short, the provisions of the CRC relating specifically to the child's right to identity raise a number of issues with regard to other human rights, compatibility with ART practices, 44

44 Zegers-Hochschild et al 2009 Fertility and Sterility 1520-1521.

Identity is characterised as a "subjective sense of an invigorating sameness and continuity". 47

47 Schachter 2002 Human Development 417.

secrecy. 58

58 Widdows and MacCallum 2002 J Med Ethics 140.

4 Identity in the context of embryo donation

4.1 The child's right to personal identity

Personal identity, also referred to as self or individual identity, pertains to a child's subjective feelings about their distinctiveness from others. 60

60 A child's earliest years form the foundation of their personal identity. Raburu 2015 Journal of Educational and Social Research 95. It refers to "self-categories which define the individual as a unique person in terms of their individual differences from other persons". See Turner et al "Personal and Social Identity" 3.

A child's right to personal identity is based on two elements: first, that "genealogical knowledge is central to the development of personal identity" 64

64 Turkmendag 2012 Journal of Law and Society 70.

Studies conducted on adopted children indicate that they show a strong interest in seeking to discover their personal identities. 69

69 Adoptive children may ask themselves questions similar to those asked by children born through embryo donation, such as "Where did I come from? Did I grow in [your] tummy? How could [my biological parents] give me away?" By adolescence, questions of personal identity intensify: "Why was I relinquished? Why did it happen to me?" See Billadeau 2014 https://adoption.com/personal-identity-issues-in-adoption.

have been shown in children who are raised by single parents. 70

70 Golombok et al 2016 Journal of Family Psychology 415.

Nevertheless, it cannot be assumed that the thoughts and feelings of children born through embryo donation are one-sided. Where such children feel as though their identities are incomplete, it can hardly be in their best interests to withhold information about their origins which would provide them with a more positive sense of identity by helping them to understand their history and where they come from. 76

76 Ravitsky 2010 Minnesota Journal of Law, Science and Technology 675. Also see Frith, Blyth and Lui 2017 Human Reproduction 1095.

When information about children's origins is withheld, they may be able to pick up "hidden clues" 81

81 Turner and Coyle 2000 Human Reproduction 2049.

identifying information on the donor couple deprives the child born via embryo donation of a major aspect of her/his individual autonomy: the opportunity to decide what meaning to assign to her/his personal identity. 84

84 Amorós 2015 Catalan Social Sciences Review 8-9.

4.2 The child's right to biological identity

The child's biological identity refers to the identity of the genetic parents who contributed their gametes – the egg and sperm – to form the embryo from which the child was born. 85

85 This should not be confused with the birth mother. O'Brien 2004 https://www.irishtimes.com/opinion/major-problems-involved-in-embryo-donation-1.1138217 .

Conceiving through the use of donated embryos may be as close to an approximation of genetic parenthood as possible as the recipient mother carries and gives birth to the child and the father is present throughout the pregnancy. 88

88 Widdows and MacCallum 2002 J Med Ethics 141.

The significance of this aspect of identity was confirmed in Rose v Secretary of State for Health, 92

92 Rose v Secretary of State for Health and Human Fertilisation and Embryology Authority [2002] 2 Family Law Reports 962 (hereafter the Rose case).

I feel that these genetic connections are very important to me, socially, emotionally, medically, and even spiritually. I believe it to be no exaggeration that non-identifying information will assist me in forming a fuller sense of self or identity and answer questions that I have been asking for a long time. I am angry that it has been assumed that this would not be the case…it is believed that if we are created artificially we will not have the natural need to know to whom we are related. 94

94 She also expressed the thought of unknowingly passing her genetic siblings in the street. See Rose case para 7.

The European Court of Human Rights found in her favour and interpreted Article 8 of the European Convention on Human Rights (ECHR), which provides for a right to respect for private and family life, to incorporate the concept of personal identity, including the right to obtain information about a biological parent. 95

95 See Rose case para 48.

4.3 The child's right to family identity

Family is the foundation for identity construction. It shapes who one is, provides a sense of belonging and defines who one is through one's relationships with one's family members. 98

98 Family identity is largely characterised by ''the macro processes that define and distinguish one family from another. Thus, family identity is foundational to the ways in which individuals develop their frameworks for family and choose to continue - or not to continue - those relationships throughout their lives.'' See Phillips Communication and Family Identity 3.

their parental and intergenerational "filial" relationships, in addition to knowledge of their family heritage. 103

103 The term filial "involves both the relationship between offspring and each individual parent and the relationship between maternal and paternal lineages". Scabini and Manzi "Family Processes and Identity" 575-576.

The family is the most fundamental unit of society and has widespread support in international law. 104

104 For example, the CRC, African Charter on the Rights and Welfare of the Child (1990) (the ACRWC) and the European Convention for the Protection of Fundamental Rights and Freedoms (1950) (the ECHR).

A child's family identity should thus be thought of in a dynamic way. 110

110 Teman and Berend 2020 Journal of Family Issues 2-3.

framework and South African legislature adequately provide protection for the right to identity of a child born through embryo donation.

4.4 The best interests of the child principle

The best interests of the child principle is an intrinsic standard associated with child-related matters. 116

116 Supaat 2014 International Journal of Business, Economics and Law 109.

[t]he child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration. 118

118 Principle 2 of the Universal Declaration of Human Rights (1948) (the UDHR).

The principle was later codified in Article 3 of the CRC, which is to be applied in all decisions made by all organs of states, i.e. the judiciary, executive and legislature. It is important to note that the concept of paramountcy was reduced to that of primary consideration:

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 119

119 Article 3(1) of the CRC.

In comparison, the ACRWC has a somewhat higher standard of "the primary consideration". 120

120 Skelton 2019 De Jure 558.

In South African law the principle was developed through family law and welfare proceedings in the early 1900s before its inclusion as a right in the Bill of Rights (BOR). 122

122 Section 28(2) of the Constitution of the Republic of South Africa, 1996 (the Constitution).

Whilst the principle calls for special attention when handling matters which affect children, there is no universally accepted definition of the term "the best interests of the child". 124

124 Supaat 2014 International Journal of Business, Economics and Law 109.

frequently entails deliberation on issues of ambiguity and the application thereof. 125

125 Supaat 2014 International Journal of Business, Economics and Law 109.

5 Safeguarding the child's right to identity

5.1 Safeguarding the child's right to identity at the international level

The protection and promotion of children's rights in the field of ART, specifically of children born through embryo donation, has not been the prime focus of the international human rights agenda. 126

126 The infringed rights of the recipients and their ability to access ART services has been the primary focus. See Rispel Scope and Content of the Child's Right to Identity 23; Paulk 2014 Journal of Gender, Social Policy and the Law 782. "[E]xcept for the possible impacts of [ARTs] on children's physical health, there has been an almost total failure to take into account other impacts of them on children." See Somerville 2007 Journal of Family Studies 183.

International law sets out the rights that States who have signed and ratified human rights instruments are obliged to provide and protect. 128

128 Paulk 2014 Journal of Gender, Social Policy and the Law 785.

As previously mentioned, South Africa is a State Party to both the CRC and the ACRWC. 130

130 SALRC Issue Paper 32 (Project 140) paras 1.12-1.13.

5.1.1 The Convention on the Rights of the Child

Articles 7, 8 and 9 of the CRC respectively guarantee "the child's rights to a name, to citizenship, to know their parents and not to be separated from them". 132

132 Ronen 2004 IJLPF 159.

Article 7 sets out a child's right to nationality, name and family relations: 133

133 McCombs and Gonzalez 2007 https://scm.oas.org/pdfs/2007/cp19277.pDF 6.

The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents. 134

134 Article 7(1) of the CRC.

While name and nationality are components of the child's identity, these elements involve only a restricted notion of identity. 135

135 Children's nationality generally follows from the issuing of their birth certificates. The CRC Committee and Centre for Civil and Political Rights (CCPR) have regularly urged State Parties to take the necessary measures to ensure all children are registered at birth in accordance with Art 24(3) of the ICCPR. See Doek 2006 Refugee Survey Quarterly 26-27. Egypt, for example, linked the "right from birth to know and belong to his parents [with] the right to a name and a nationality for children because it ensures psychological stability and the development of [the child's] personality". This reflects most societies' understanding of the concept of identity. See Page Artificial Womb Technology 11.

First, embryo donation raises several questions with regard to the right to be "cared for" by one's parents, since the person who raises the child is the same one who gave birth to her/him, and although they may not share a genetic link they share a gestational link. 137

137 Wade 2017 Child Law Quarterly 11.

Secondly, in respect of the right to "know one's parents" under Article 7(1) of the CRC, embryo donation once more raises questions such as whether children should know about the method of their conception and the identities of their biological parents. 142

142 Wade 2017 Child Law Quarterly 12.

to prevent and eradicate the practice and ensure rather that the information regarding the child's parents be registered and filed as a necessary measure. 144

144 Buia Survey on the CRC Committee's Concluding Observations 17.

Article 8 of the CRC stipulates the following:

1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

It may be debated that the "right to identity" under Article 8 of the CRC is an independent right which aims to safeguard the right to know one's genetic origins. 147

147 McCombs and Gonzalez 2007 https://scm.oas.org/pdfs/2007/cp19277.pDF 13-14.

The phrase "family relations as recognised by law" is unclear, 152

152 Hodgkin, Newell and UNICEF Implementation Handbook 114.

There is undoubtedly growing support for the recognition of children's interest in being informed of the truth of their biological origins because it

gives rise to claims of justice as opposed to the interests of adults, which form the foundation for attempts at exercising power: 155

155 Eekelaar Family Law and Personal Life 75-76.

Children have interest in having knowledge of the physical truth because it provides an underlying certainty about the world they have come into, incapable of manipulation by the adults. The children may stake their claims against those who is responsible for their being. 156

156 Eekelaar Family Law and Personal Life 75-76.

Thus, efforts must be made to obtain children's viewpoint and caution should be exercised against adopting a paternalistic mindset that views children as individuals with lesser capacity. 157

157 Turkmendag 2008 IJLPF 301.

The term "preserve" suggests both the non-interference in identity and the preservation of records pertaining to genealogy and birth registration. 158

158 Hodgkin, Newell and UNICEF Implementation Handbook 115.

Hence, Article 8 implies that State Parties have the positive duty to register and preserve data concerning a child's identity, for that data to be made accessible to the child and for appropriate measures to be implemented in order to re-establish the child's identity. 162

162 SALRC Issue Paper 32 (Project 140) 8.

Neither Article 7 nor Article 8 resolves the issue of whether children born through embryo donation are guaranteed the right to know their origins, nor do they offer any criteria as to how to balance this right against the rights of

privacy of both the social and biological parents. 165

165 SALRC Issue Paper 32 (Project 140) para 1.45.

5.1.2 The African Charter on the Rights and Welfare of the Child

This regional instrument was drafted with the intent to address the CRC's omission of important socio-cultural realities and values which are particular to the African continent. 167

167 Skujyte Rights of African Children 29-30.

The African Committee of Experts (the African Children's Charter Committee) views the rights to a name, birth registration and a nationality together as the pillars of a child's identity. 170

170 African Committee of Experts General Comment on Article 6 of the African Charter on the Rights and Welfare of the Child (2014) para 23.

1. Every child shall have the right from his birth to a name.

2. Every child shall be registered immediately after birth.

3. Every child has the right to acquire a nationality.

State Parties to the present Charter shall undertake to ensure that their Constitutional legislation recognize the principles according to which a child shall acquire the nationality of the State in the territory of which he has laws. 171

171 Article 6 of the ACRWC.

The wording of Article 6 of the ACRWC is similar to that of Article 7 of the CRC, 172

172 Article 7(1) of the CRC: "The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents."

Nevertheless, these rights may be derived from a broad interpretation of Article 19 of the ACRWC, which provides for the child to maintain personal relations and direct contact with her/his parents. 175

175 Article 19 of the ACRWC states that: "(1) Every child shall be entitled to the enjoyment of parental care and protection and shall, whenever possible, have the right to reside with his or her parents. No child shall be separated from his/her parents against his/her will, except when a judicial authority determines in accordance with the appropriate law, that such separation is in the best interest of the child. (2) Every child who is separated from one or both parents shall have the right to maintain personal relations and direct contact with both parents on a regular basis."

Article 6(4) of the ACRWC complements Article 7(2) of the CRC. 176

176 Article 7(2) of the CRC: "States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless."

Nationality is generally acquired automatically at birth under the law on the basis of either descent or birth in the territory, or a combination of both and parentage. 179

179 De Groot and Vonk 2018 NILR 320.

to ensuring that every child acquires a nationality and to prevent statelessness. 183

183 The African Committee of Experts General Comment on Article 6 of the African Charter on the Rights and Welfare of the Child (2014) para 23: "A State's compliance with the obligation to prevent and reduce statelessness starts from taking all necessary measures to ensure that all children born on its territory are registered. These include: children born out of wedlock children born to a parent or parents who are foreigners (including those whose parents are in an irregular immigration status, or who are refugees or asylum seekers), children whose parents are unknown, and all other groups at risk of non-registration."

To summarise, under international law the right to identity is an express and implicit, independent and distinctive right. 184

184 McCombs and Gonzalez 2007 https://scm.oas.org/pdfs/2007/cp19277.pDF 1.

5.2 Safeguarding the child's right to identity at the national level

5.2.1 Constitutional protection

The rights of children are embodied in the Constitution. 190

190 Sloth-Nielsen and Kruuse 2013 Int'l J Children's Rts 646.

the drafters of the Constitution, in order to give children's rights a priority, devoted a special section to the rights of the child in the BOR. 192

192 One of the most significant aspects of the transition to democracy for South Africa was the adoption of a justiciable Bill of Rights which included an elaborate children's rights clause, inspired by the CRC. See Sloth-Nielsen and Kruuse 2013 Int'l J Children's Rts 646.

Section 28(1)(b) of the Constitution states that "a child has a right to family care or parental care". 193

193 Section 28(1)(b) of the Constitution. The Children's Act seeks to give effect to all the rights set out in s 28 of the Constitution. See Preamble of the Children's Act.

However, what is clear from section 28 of the BOR is the importance of a child's national identity. 198

198 Section 28(1)(a) of the Constitution.

Thus, a birth certificate serves as a crucial step to establishing a child's legal identity, which further protects the child's right to a national identity. 203

203 Selim 2019 https://www.unicef.org/stories/what-birth-registration-and-why-does-it-matter . The right to a legal identity also encompasses the right to be afforded an identity document or card and a passport. See Page Artificial Womb Technology 39.

the child's disappearance may go undetected by national authorities, especially across international borders. 205

205 UN Human Rights Council Birth Registration and the Right of Everyone to Recognition Everywhere as a Person Before the Law: Report of the Office of the United Nations High Commissioner for Human Rights UN Doc A/HRC/27/22 (2014) para 30.

5.2.2 Legislation

Assisted reproduction is regulated in South Africa by the National Health Act 61 of 2003 (NHA) and the Regulations Relating to Artificial Fertilisation of Persons, 2016. 208

208 SALRC Issue Paper 32 (Project 140) para 2.9. See GN 251 of GG 44321 of 25 March 2021.

The Regulations refer to embryo donation in only a single instance with regard to the establishment of a Central Data Bank:

The Director-General shall establish an electronic central data bank into which all information regarding gamete and embryo donations is stored. 209

209 GN 1165 in GG 40312 of 30 September 2016 para 5.

The effect of the non-disclosure of the identity of the donating couple has been discussed at length in existing publications. Despite the issues raised in connection with the anonymity of the donor couple, the NHA requires that the identities of the donors remain undisclosed. 210

210 Mande Building Families 232.

No person may disclose the identity of any person who donated a gamete or received a gamete, or any matter related to the artificial fertilisation of such gametes, or reproduction resulting from such artificial fertilisation except where a law provides otherwise or a court so orders. 211

211 Section 19 of the National Health Act 61 of 2003.

Similarly, the Children's Act further prohibits a child born as a result of artificial fertilisation from having access to the identity of gamete donors. 212

212 SALRC Issue Paper 32 (Project 140) para 1.20.

It is clear that the above pieces of legislation prohibit the disclosure of the identities of the donating couple. In other words, the donating couple will remain anonymous, and the child born through embryo donation will have no right to learn of the identities of her/his biological parents. 217

217 SALRC Issue Paper 32 (Project 140) para 2.9.

5.2.3 Law reform

In May 2017 the South African Law Reform Commission released a project titled "The Right to Know One's Own Biological Origins" to initiate debate and to stimulate responses which would form the foundation for the investigation into children's right to know their biological origins. 219

219 SALRC Issue Paper 32 (Project 140) ii.

persons and proposed amendments by the Department of Health will be implemented remains to be seen. 224

224 GN 251 in GG 44321 of 25 March 2021.

6 Concluding remarks

In summation, both the NHA along with its accompanying Regulations, and the Children's Act fail to protect the child's right to identity since both prohibit the disclosure of the identities of the donor couple. Moreover, the Constitution's provision on children's rights is unhelpful due to the lack of clarity around the definition of "family care or parental care". However, like international law the Constitution recognises the importance of protecting the child's national identity, and through the initiative of registering its population through the issuing of birth certificates recognises the child's family identity. Neither the South African legislative framework nor the CRC nor the ACRWC explicitly uphold the child's right to an identity. 225

225 Ronen 2004 IJLPF 148.

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European Convention for the Protection of Fundamental Rights and Freedoms (1950)

International Covenant on Civil and Political Rights (1966)

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UN Convention on the Rights of the Child (1989)

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UN Human Rights Council Birth Registration and the Right of Everyone to Recognition Everywhere as a Person Before the Law: Report of the Office of the United Nations High Commissioner for Human Rights UN Doc A/HRC/27/22 (2014)

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List of Abbreviations