Title of the law: Medically Assisted Procreation and Destination of Supernumerary Embryos and Gametes Act of 6 July 2007
Entry into force 27 July 2007
Published in: the Moniteur belge [Official Gazette] on 17 July 2007, p.38575
Articles 26 and 55, paragraph 2, of the Act, inserted by a law of 10 April 2014 and entered into force on 10 May 2014 provides that if the two authors of the parental project are two women, they are considered as a single woman, when counting the maximum of six women who can give birth to children from gametes or surplus embryos from one donor or donor couple.
19. Is there an important current debate in your country on these or related issues? It is necessary to renew Decree of the Ministry of Health.
20. Delegations are invited to provide information, in this section, on particular cases encountered in their country, and especially their case-law. NA
2. Are there specific criteria for access to MAP?
Medical reasons:
a. Infertility:
For a heterosexual couple? Yes; For women not living in a heterosexual couple? Yes
b. Risk of transmission of a disease
For a heterosexual couple Yes?; For women not living in a heterosexual couple? Yes
c. Other Yes
There is a screening on sexually transmitted diseases.
1. Is access to medically assisted procreation (MAP)
a. restricted to heterosexual couples? No
b. possible for women not living in a heterosexual couple? Yes
The national legislation is based on the concepts of a “couple” (that is, a woman and a man living together in marriage or in a relationship comparable to marriage or two women living together in marriage, registered partnership or in a relationship comparable to marriage) and a “person receiving treatment” (a couple or a woman not living in a marriage, registered partnership or a relationship comparable to marriage). The provisions in certain sections of the Act vary depending on whether the treatment is provided to a couple or to a single woman.
Clinics in the public sector have declined to provide MAP to female couples and single women, on the grounds that these services are provided only on the basis of medical indications. Female couples and single women have for this reason sought services from the private sector.
16. Is donation of sperm/oocytes/embryos anonymous? No. As previously indicated, under the Children and Family Relationships Act gamete and embryo donation is permitted on a non-anonymous basis. Gamete and embryo donors will be required to provide name; place and date of birth; nationality, place and date on which s/he provided the donation; and contact details. Once a donor-conceived child has attained the age of 18 years s/he may request the name, date of birth and contacts details of the relevant donor, as recorded in the National Donor-Conceived Person Register.
17. Is it possible to obtain information about the biological origin of a child born after gametes of embryo donation?
i. For the child him or herself Yes; ii. For the parents Yes; iii. For a court NA
According to the Children and Family Relationships Act 2015, a donor-conceived child who has attained the age of 18 years, or the parent of a donor-conceived child who has not attained the age of 18 years, may request the following information from the Register:
(a) information other than the relevant donor’s name, date of birth and contact details, that is recorded on the Register in respect of the relevant donor;
(b) the number of persons who have been born as a result of the use in a donor-assisted human reproduction procedure of a gamete donated by the relevant donor, and the sex and year of birth of each of them.
In addition, the Act provides that, a donor-conceived child who has attained the age of 18 years may request the name, date of birth and contacts details of a relevant donor, as recorded in the Register. The donor must be issued with a notice informing him or her that a request has been made by the donor-conceived child. The requested information may be released 12 weeks from the date on which on which the notice is sent (with very restrictive exceptions).
a. Identity of the donor(s)
i. For the child him or herself Yes; ii. For the parents Yes; iii. For a court NA
See answer to previous question
b. Certain health information concerning the donor(s)
i. For the child him or herself; ii. For the parents; iii. For a court
Under the proposed assisted human reproduction legislation, medical information relating to the donor may be released to a medical practitioner in order to avoid an imminent and serious risk to the health of a person or to enable the medical practitioner to provide medical advice to a person regarding the existence of a genetic or hereditary condition.
c. Other information
i. For the child him or herself; ii. For the parents; iii. For a court NA
18. Is it possible to contest maternity and paternity of children born utilising MAP and under which conditions? Yes/No.
According to the Irish Constitution, the woman who has given birth to a child is always regarded as the legal mother. This assertion was challenged in the Irish Courts, but it was upheld in the Supreme Court in 2014 in the MR and Anor – v- An tArd Chlaraitheoir & Ors (Surrogacy) case.
According to the Children and Family Relationships Act 2015, the parents of a donor-conceived child are the mother and her husband, civil partner or cohabitant as the case may be. A donor of a gamete or embryo is not regarded as the parent of a donor-conceived child.
16. Is donation of sperm/oocytes/embryos anonymous? sperm Yes/oocytes Yes/embryos -
See art.18 reg.568/1997 (If a donor wishes to remain anonymous, health workers are obliged to ensure that this is respected. In this case, the donor may neither receive information about the couple receiving the donated gamete or the child, nor the couple or the child receive information about the donor. If a donor does not wish to remain anonymous, the institution shall preserve information about him in a special file. If the donation of gamete leads to the birth of a child, information about the child and the couple who received the gamete shall be kept in the same file. A child born on account of a gamete donation where the donor does not wish to remain anonymous can at the age of 18 gain access to a file pursuant to paragraph 2 for the purpose of obtaining information about the identity of the donor. If a child receives information about the gamete donor at the institution, the said institution shall as soon as possible inform the donor that the information has been given.)
17. Is it possible to obtain information about the biological origin of a child born after gametes of embryo donation?
i. For the child him or herself Yes; ii. For the parents No; iii. For a court No
The child cannot obtain information if the donor has wished to remain anonymous, See art.18 reg.568/1997.
a. Identity of the donor(s)
i. For the child him or herself Yes; ii. For the parents No; iii. For a court No
The child cannot obtain information if the donor has wished to remain anonymous, See art.18 reg.568/1997.
b. Certain health information concerning the donor(s)
i. For the child him or herself Yes; ii. For the parents No; iii. For a court No
The child cannot obtain information if the donor has wished to remain anonymous, See art.18 reg.568/1997.
c. Other information
i. For the child him or herself Yes; ii. For the parents No; iii. For a court No
The child cannot obtain information if the donor has wished to remain anonymous, See art.18 reg.568/1997.
18. Is it possible to contest maternity and paternity of children born utilising MAP and under which conditions? No. See art.6, Act in respect of Children, no. 76/2003 (A man who has agreed that his wife be artificially inseminated according to the Act on is deemed to be the father of a child so conceived. The same applies to a man and a woman who have registered their cohabitation with the National Registry. A man who donates sperm for the purpose of it being used in artificial insemination of a woman other than his wife or cohabiting spouse, cf. paragraph 1, according to the provisions of the Act on Artificial Insemination will not be deemed to be the father of a child conceived with his sperm. -A man who donates sperm for another purpose than stipulated in paragraph 2 is deemed to be the father of a child conceived with his sperm unless the sperm is used without his knowledge or after his decease.)
16. Is donation of sperm/oocytes/embryos anonymous? sperm Yes/oocytes Yes/embryos No
17. Is it possible to obtain information about the biological origin of a child born after gametes of embryo donation?
i. For the child him or herself NA; ii. For the parents NA; iii. For a court NA
a. Identity of the donor(s)
i. For the child him or herself NA; ii. For the parents NA; iii. For a court NA
b. Certain health information concerning the donor(s)
i. For the child him or herself Yes; ii. For the parents Yes; iii. For a court NA
c. Other information
i. For the child him or herself NA; ii. For the parents NA; iii. For a court NA
18. Is it possible to contest maternity and paternity of children born utilising MAP and under which conditions? No. In the case of reproduction using a heterologous donor - even if prevented by law - the donor cannot disown the child (Art 9). The mother of the child after MAP cannot declare her wish not to be entered in the birth registers as provided for by dpr no 396 (2000).
1. Is access to medically assisted procreation (MAP)
a. restricted to heterosexual couples? No
b. possible for women not living in a heterosexual couple? No
The 2007 Act makes no mention of such a restriction. Each centre is free to accept or refuse requests from homosexual couples.
3. Are MAP procedures covered by the social security system? Yes
4. Are there specific criteria for such coverage? Yes. Age limit of woman – 40 years old.
5. Is the financial coverage limited to a number of MAP procedures? Yes. Four attempts.
1. Is access to medically assisted procreation (MAP)
a. restricted to heterosexual couples? No
b. possible for women not living in a heterosexual couple? Yes. Selection on the basis of a psychologist’s opinion and following the recommendations formulated by the National Ethics Commission.
16. Is donation of sperm/oocytes/embryos anonymous?
sperm No / oocytes No / embryos No
Due to amendments to the Human Fertilisation and Embryology Act – the law overseeing the use of fertility treatment in the UK – donor conceived people born after 1 April 2005 can request identifying information about their donor from the HFEA once they reach 18 years old. This, however, means that there are different information access rights depending on when the donor conceived person was conceived. These are set out below.
17. Is it possible to obtain information about the biological origin of a child born after gametes of embryo donation?
i. For the child him or herself Yes; ii. For the parents No; iii. For a court Yes
The HFE Act 1990 (as amended) allows donor conceived people to apply for non- identifying information about the donor, if available, such as family medical history, hair/eye colour and interests, when they reach 16. If they were conceived after 1 April 2005, when the donor conceived person reaches 18 years old, they may apply to the HFEA to receive identifying information about their donor.
Parents of children conceived through donor conception can access non identifying information about the donor from the HFEA.
Section 34 of the HFE Act 1990 permits the Authority to make disclosure where it is necessary for the purposes of instituting proceedings under the Congenital Disabilities Act.
a. Identity of the donor(s)
i. For the child him or herself Yes; ii. For the parents No; iii. For a court Yes
b. Certain health information concerning the donor(s)
i. For the child him or herself Yes; ii. For the parents Yes; iii. For a court Yes
c. Other information
i. For the child him or herself Yes; ii. For the parents Yes; iii. For a court Yes
18. Is it possible to contest maternity and paternity of children born utilising MAP and under which conditions? Yes.
Whether patients’ own gametes are used in assisted fertility treatment or whether donor gametes are used, where the couple is either married or in a civil partnership, both parents will be the legal parents of any child born from the treatment from the date of birth of the child. The law endeavours to put couples who have had assisted fertility treatment in a similar position to couples who conceive naturally as regards legal parenthood and parental responsibility. It is however possible for the father or second parent (in the case of a female same sex couple who are in a civil partnership) to resist legal parenthood but only where the person can demonstrate that he or she did not consent to their partner’s treatment (see section 35(1) and section 42(1) of the HFE Act 2008).
When donor gametes are used in treatment, and where the couple having treatment is neither married nor in a civil partnership, the second parent (i.e. not the birth mother) can acquire legal parentage if the agreed parenthood conditions are met (see section 37 and 44 of the HFE Act 2008). In cases where the agreed parenthood conditions are not met, parenthood will be in question and in order to establish legal parenthood, the couple would need to seek a declaration of parenthood from Court.
Further information on legal parenthood can be found on these pages of the HFEA website:
https://www.hfea.gov.uk/treatments/explore-all-treatments/becoming-the-legal-parents-of-your-child/
Definitions of mother and father in accordance to (HFE) Act 2008 are as follows:
Meaning of "mother"
(1) The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child.
(2) Subsection (1) does not apply to any child to the extent that the child is treated by virtue of adoption as not being the woman’s child.
(3) Subsection (1) applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs.
Meaning of "father"
35 Women married at time of treatment
(1) If -
(a) at the time of the placing in her of the embryo or of the sperm and eggs or of her artificial insemination, the woman was a party to a marriage, and
(b) the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage, then, subject to section 38(2) to (4), the other party to the marriage is to be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).
(2) This section applies whether the woman was in the United Kingdom or elsewhere at the time mentioned in subsection (1)(a)
19. Is there an important current debate in your country on these or related issues? As referred to at 18 above, in cases where the agreed parenthood conditions of the HFE Act 2008 have not been met, legal parenthood does not automatically follow for the second parent. In such cases one of the only remedies for the second parent to seek a declaration of legal parenthood from the Court. See for example the recent case (Neutral Citation Number: [2015] EWHC 2602 (Fam) which can be found here: https://www.judiciary.gov.uk/wp-content/uploads/2015/09/parentage.pdf
20. Delegations are invited to provide information, in this section, on particular cases encountered in their country, and especially their case-law.
R (TT) v Registrar General for England and Wales & Ors ((2019) EWHC 2384 (Fam))
The case concerns a transgender man (TT) who has a gender recognition certificate (GRC) confirming that he is male for all legal purposes except the limited exceptions set out in the Gender Recognition Act 2004 (GRA). TT had artificial insemination using donor sperm in a licenced fertility clinic, fell pregnant as a result, gave birth to a child, in 2017. He tried to register the birth as the father but was refused by the Registrar General (RG) who was only able to register the birth with TT as the mother. The birth has remained unregistered.
The judgement was handed down on 25 September 2019. The judge supported the Government’s position that a person who gives birth to a child (i.e. including a trans man such as TT) will be the child’s mother. The Government’s view is that the judgment has no effect on the availability of regulated fertility treatment in the UK. The Government considers that regulated fertility treatment is currently, and will remain, equally available to all (trans) women and (trans) men under the Human Fertilisation and Embryology Acts.
3. Are MAP procedures covered by the social security system? No. First step is made to cover one cycle in case of bilateral tubectomy.
4. Are there specific criteria for such coverage? Yes.
5. Is the financial coverage limited to a number of MAP procedures? Yes. Only one IVF procedure.
6. Is donation of sperm Yes/oocytes No/embryos* permitted in your country? Yes.
*Embryo donation per se is not regulated by law. However, the Embryo Protection Act provides that an oocyte may only be artificially fertilised for the purpose of bringing about a pregnancy in the same woman from whom the oocyte has been obtained (Section 1(1) number 2 of the Embryo Protection Act) and that it is prohibited to remove an embryo from a woman before its nidation is completed, in order to transfer it to another woman (Section 1(1) number 6 Embryo Protection Act). In addition, the Embryo Protection Act incorporates provisions aimed to prevent the creation of supernumerary embryos in the course of artificial fertilisation (especially the ban on the artificial fertilisation of more oocytes than can be inserted into a woman within one cycle – Section 1(1) number 5 Embryo Protection Act). Consequently, permissible embryo donation is only conceivable in exceptional instances where an artificially created embryo can unexpectedly no longer be transferred to the woman from whom the oocyte originated.
7. Are there specific compensation arrangements for donations of sperm/oocytes/embryos? No
8. Are there specific criteria for donation of sperm Yes/oocytes/embryos?
Gametes may be used for medically assisted procreation only after full medical assessment and if their use is medically indicated and the protection of the recipient’s and the child’s health is guaranteed (Section 6(1) of the Tissues and Cells Regulation of the Transplantation Act). The use of sperm cells for heterologous fertilisation as a medically assisted procreation technique furthermore requires that the sperm donor is medically assessed as suitable for sperm donation with regard to his age, state of health and medical history and that the use of the donated sperm will not pose any health risks to others. The necessary donor information must be collected by questionnaire and by means of a subsequent personal interview with the donor by the physician.
An age limit exists for eligibility to cost coverage by the health insurance funds (see response to question 4).
9. Are there specific non-medical criteria for selection of gametes/embryos to be used for MAP? No
10. Are there special measures for the prevention of consanguinity? No. As part of a voluntary commitment physicians, sperm banks and laboratories have limited the number of offspring from a sperm donation to 15 (Richtlinien des Arbeitskreises für Donogene Insemination zur Qualitätssicherung der Behandlung mit Spendersamen in Deutschland).
11. In a homosexual couple, is a legal relationship possible between a child and the partner of the legal parent? Yes.
German law includes the following provisions governing the legal relationship between the child and the spouse of the legal parent:
Pursuant to Section 1741(2) sentence 4 of the Civil Code/Section 9(7) sentence 1 of the Act on Registered Life Partnership, a spouse/registered partner is entitled to adopt his or her spouse’s/registered partner’s biological child. According to Section 1742 of the Civil Code/Section 9(7) sentence 2 of the Act on Registered Life Partnership, a spouse/registered partner may also adopt the child adopted by his or her spouse/registered partner. There is no longer a distinction between heterosexual and homosexual married couples, registered partners or between married and unmarried stable couples in case they want to adopt the child of their partner (Section 1766a of the Civil Code). In addition, married couples regardless of the sex of the spouses may adopt any other child as common parents, whereas unmarried couples and registered partners do not have this option to become common parents of the child simultaneously. They have to adopt the child successively.
3. Are MAP procedures covered by the social security system? Yes
MAP is a medical therapy under Section 27a of Book V of the Social Code.
The medical services covered by the statutory health insurance also include medical interventions aimed to induce a pregnancy. MAP measures must be medically diagnosed as necessary and have reasonable chances of success.
The Statutory Health Insurance Modernisation Act [GKV-Modernisierungsgesetz] reasonably restricted the entitlement to MAP measures from 1 January 2004 onwards. Since then Section 27a of Book V of the Social Code specifies that 50% of the costs are covered by the health insurance fund, so that the insured equally share in the costs of MAP interventions with a co-payment of 50%.
To reduce the financial burden caused by the 2004 cutback in costs covered by the statutory health insurance fund, in 2012 the Federal Ministry for Family Affairs launched the federal initiative “Hilfe und Unterstützung bei ungewollter Kinderlosigkeit” (assistance and support for involuntary childlessness). The funds are paid from both the federal budget and the budget of the Länder in which the couples concerned have their principal residence. Currently, twelve of the sixteen Länder participate in the initiative. Federal funding is generally provided for the first four treatment cycles of in-vitro fertilisation (IVF) and intracytoplasmic sperm injection (ICSI). Couples can be reimbursed up to 25 per cent of the share they have to pay in addition to the costs covered by the health insurance fund.
Until 2015, only married couples were entitled to additional federal financial assistance. Today, also unmarried couples living in a non-marital long-term relationship can receive federal financial assistance under the amended federal guidelines on financial assistance for assisted reproduction procedures (Richtlinie über die Gewährung von Zuwendungen zur Förderung von Maßnahmen der assistierten Reproduktion), which took effect on 7 January 2016. However, pursuant to Section 27a of Book V of the Social Code, entitlement to benefits from the statutory health insurance fund is still restricted to married couples only.
4. Are there specific criteria for such coverage? Yes.
The criteria included in Section 27a of Book V of the Social Code:
Coverage of part of the costs by the statutory health insurance funds is subject to the following requirements:
Any method other than homologous fertilisation is excluded from the mandatory package of benefits and services of the statutory health insurance system.
The restriction of eligibility to married couples is in accordance with the German Constitution (cf. Judgment of 28 February 2007 – 1 BvL 5/03, BVerfGE 117, 316).
Eligibility is subject to age limits of between 25 and 40 years for women and between 25 and 50 years for men.
Although unmarried heterosexual couples are not entitled to benefits from the statutory health insurance fund pursuant to Section 27a of Book V of the Social Code, they can receive the voluntary financial assistance offered through the federal initiative “Hilfe und Unterstützung bei ungewollter Kinderlosigkeit”.
5. Is the financial coverage limited to a number of MAP procedures? Yes. Pursuant to Section 27a of Book V of the Social Code three attempts to induce a pregnancy are partially covered by the health insurance funds. The payment of expenses by the health insurance funds has been limited to 50% of the costs approved along with the treatment schedule.