CROSS-BORDER CHILD RELOCATION AND THE EU

This book is about laws on cross-border child relocation, understood as a long-term move to another country by a parent with his or her child. It is also about the European Union (EU), EU law, and what it means ‘to live with EU law’. And, bringing these themes together, it is about the influence of European law – both present and prospective – on national child relocation laws. As will be discussed, it is perhaps no longer a novel claim that EU law influences national family laws. EU law does so via legislative provisions on certain aspects of cross-border private relationships and by imposing obligations, as set out by the Luxembourg judges, to adjust national laws of EU Member States to free movement requirements. However, EU legal interventions rarely touch upon the core aspects of substantive family law, consistently considered to constitute a retained competence of EU Member States. While child relocation remains one of these core aspects, nowhere else do cross-border movement and substantive family law come together as clearly, prompting interest in the dynamics and effects of various EU influences in this understudied area of law.

The interest in the intersections of EU law and cross-border child relocation law emerges from three main observations.

INTRODUCTION

The previous three chapters have been devoted to an in-depth analysis of the nature and limits of doctrinal pressures that are, or could prospectively be, exerted by EU law on national child relocation laws. It is now time to take a closer look at the more complex and more subtle contextual influence of EU law. As noted before, the EU is generally ‘not meant to constitute its own legal subjects’. Due to the limitation of its competence and the institutional constraints, EU law is even less meant to do so in family law that remains interested in substantively different phenomena. However, it would be difficult to dispute the fact that EU law or the CJEU's judgments do indeed contain accounts of who human beings are, what expectations they hold, and how this presupposes normative answers to their situations. As individuals ‘anxious to secure their place in situations of disaffiliation, multi-affiliation or vulnerability’ become ‘the custodian of specifically European interest’, EU decision-makers – and the CJEU in particular – are increasingly called upon to characterise these individuals through particular aspects of their social settings to grant them rights under EU law. From this perspective, multiple authors perceive the notions of autonomy and agency as dependent on the existence of a particular (here supranational) community, within which options become available to an individual and within which the individual can develop a reasonable perception of such agency

INTRODUCTION

In most jurisdictions, the residence of a child is one of the main issues on which parents must agree jointly. Where this agreement is lacking, a court decision allowing relocation is usually needed to guarantee the lawfulness of the move. Although most jurisdictions resolve relocation disputes with reference to the child's best interests principle, the assessment of the child's best interests is a well-recognised challenge. While the principle is embedded in Article 3 of the United Nations Convention on the Rights of the Child (the CRC) and considered to be one of the general principles underpinning the Convention, the most widely ratified human rights treaty in the world, it generates a significant variety of approaches in different contexts. This can also be said about child relocation. It is not the objective of this book to discuss the nature and content of the principle in detail, and many excellent commentaries on the topic can be found elsewhere. However, certain features of the debate are substantively and methodologically relevant for the broader analysis undertaken in this book. As the CRC's understanding of the principle underpins national family laws across the EU and many EU legal instruments, including the EU Charter of Fundamental Rights (CFR) and the Brussels IIter Regulation, the pertinent features of the principle and methodologies for best interests assessments are discussed in reference to the CRC.

INTRODUCTION

Medically assisted reproduction has helped many people to fulfil their desire to have children. Nearly 11 million fertility treatments, which have led to the birth of almost three million children, took place in Europe between 1997 and 2018. The figures show an upward trend: from around 35,000 children born in 1997 to over 200,000 children born in 2018.

Medically assisted reproduction can involve the use of gametes (sperm and/or eggs) or embryos from a donor. Although many parents prefer having a genetically related child, the use of donor gametes or embryos is sometimes the only option. Heterosexual couples with fertility or safety problems (e.g. at high risk of transmitting genetic disorders) and same-sex couples or single women with a desire to have children have to turn to donor gametes or embryos. This chapter deals with the question of preserving or abolishing donor anonymity in the field of gamete and embryo donation. To this day, donor anonymity versus access to information about the donor has been a key issue in the debates on medically assisted reproduction.

The next section of this chapter focuses on recent developments that have taken place in the complex field of medically assisted reproduction and the right to know one's genetic origins. The rights of donor-conceived persons to know about their origins have changed for the better in the past 30 years. Traditionally, most jurisdictions favoured anonymous donation. These days, the principle of the absolute anonymity of the donor is called into question both at international and national level.

INTRODUCTION

Use of donor sperm has been a form of family building for perhaps more than a century in a clinical context; the use of donated oocytes, however, did not become feasible until the 1980s. Counselling intended parents who consider use of donor gametes is still a relatively new field and has since the start been influenced by public attitudes towards the importance of genetics and kinship in parentage, moral and community standards and legal frameworks. One of the issues influenced by these attitudes is the disclosure of donor conception and identity to donor conceived children.

For decades, it was not an option to disclose donor conception to children so conceived and to the outside world. Nowadays, under the influence of donor conceived offspring themselves and scientific evidence, promotion of greater openness of donor conception is supported by new policy frameworks in a number of countries. Evidence shows that openness is the better approach for parents and offspring and the only realistic approach, given the growing curiosity towards ancestry information and the increased use of direct-to-consumer genetic testing. However, even today donor conception is veiled in secrecy for many heterosexual families and even homosexual families or single mothers do not always talk to their offspring about their conception with donated gametes. Nevertheless, fertility centres who offer treatment with donor gametes have a responsibility to offer evidence-based counselling on the use of donor gametes including information provision, assessment of readiness to use donor gametes, guidance of patients on decision-making on (non-) disclosure of donor conception and psycho-education on the lifelong management of this topic.

INTRODUCTION

Insemination with donor sperm is ‘the oldest technique in the new technologies of reproduction’. It was first successfully practised in 1884. Since WWII the number of donor insemination treatments has slowly increased. At its onset donor insemination was met with hostility and not socially accepted. As a result, non-disclosure and donor anonymity were the primary organising principles of the practice and it remained hidden from public view. Linked with these principles were particular representations regarding those involved that co-constructed the practice of donor insemination. For example, donor-conceived people were represented as purely the end-product of a donor insemination treatment, a successful outcome of a medical procedure. Policy-makers and practitioners talked about the donor-conceived children and it was decided for them that it was in their best interest not to know about their donor-conceived status. During the 1970s and the years following, laws were passed in some jurisdictions to ensure legal certainty regarding the status of the donor-conceived child. And in the ‘80s – after the birth of Louise Brown, the first IVF baby – discussions were raised about if and how assisted reproductive technologies should be regulated. These debates included whether or not donor-conceived people should have access to donor information. Meanwhile, donor-conceived children had grown into adults and gained a voice of their own, expressing their needs and interests. And societal views on the role of genes in identity development, the meaning of genes in relationships, and the importance for donor-conceived people of gaining access to genetic and biographical data were re-evaluated.

INTRODUCTION

A right to identity for individuals is protected within the European human rights framework on the basis of Article 8 of the European Convention on Human Rights (ECHR). But what does the right to identity amount to? Is it a right for individuals to be themselves and to protect all that is important to their identity, which possibly demands respect for ‘who a person is and to whom or what someone belongs’? Does the right require recognition of an individual’s existence: a right to be recognised as a person (before the law), which demands respect for the fact ‘that someone exists’? Or does the right to identity come down to ‘the right to know one’s biological/genetic origin’, since the right to identity not infrequently comes up in discussions on parentage in the context of adoption, anonymous birth, surrogacy etc. This chapter on the right to identity aims to answer such questions on the basis and meaning of this right as it is given in the case law of the European Court on Human Rights (ECtHR, or the Court). If the right to identity arises in the context of Article 8 ECHR, what are we talking about then? In this chapter it will become clear that: 1) a right to identity is not one and the same as a right to know your origin, and 2) the right to identity in the ECHR does not per se contain the same as rights to identity in other instruments.

INTRODUCTION

On 29 May 2019, the Dutch Minister of Health Care presented the results of the second review of the (Dutch) Act on Donor Data in Artificial Insemination (Wet donorgegevens kunstmatige bevruchting – WDKB) to the Dutch Parliament. This review, performed by a multidisciplinary research team of the Universities of Groningen and Amsterdam, aimed at obtaining a clear view on the WDKB's efficiency, side effects and general application. Apart from several positive developments, the evaluation regrettably showed various shortcomings in the registration and provision of donor information, the guidance given to donor-conceived children, donors and intended parents after such information was shared, as well as deficiencies in specific education, for instance on the proper time to inform a child about its parental origin. Furthermore, the performance of the Foundation on Donor Information relating to Artificial Insemination (the Foundation), responsible for the adequate implementation of the WDKB, gave rise to serious concerns about achieving the Act's objectives, especially with regard to safeguarding the (donor) child's right to information about its biological descent.

In contrast to the first evaluation of the WDKB in 2012, the WDKB's second review examined separately to what extent current WDKB-practice could be considered ‘children's rights-proof ‘. A realistic view on this was believed to be imperative, because the working of the WDKB would be tested when the first donor-conceived children, born under the WDKB and reaching age 16, would start (as of Spring 2021) to request donor-identifying information from the Foundation.

INTRODUCTION

The right to genetic ancestry and the right to identity as discussed in the previous chapters are closely linked to the concept of ‘genes’. Biologically speaking, a gene is a basic unit of heredity, made up of DNA. Every human being starts out with genetic material from a sperm and an egg cell. Not only are genes essential, basic elements of an individual, but the sharing of genes also creates genetic connections between people.

Despite the precise biological definition of what genes are, genes are not just a biological given: they are also a social construct. Over the years, the significance and meaning given to genes and genetic relations have been extensively reviewed in philosophical, psychological, educational, sociological, and legal discourses as well as by lay people. In particular, the significance of genes to the development of identity (in the nature-nurture debate) and in kinship has often been discussed. Sometimes more significance was given to nature, and at other times to nurture.

The last few decades have seen an increased interest in genes within various fields. In the medical world, interest was raised by the Human Genome Project (HGP), an international, collaborative research programme whose goal was the complete mapping and understanding of all the genes of human beings. This ‘new genetics’ has led to an enhanced emphasis on the importance of genes in the field of health, focusing on genetic predisposition and inheritance.

Do donor-conceived children have a right to know the identity of their sperm or egg donor or should donors have a choice to remain anonymous? What does relinquishing donor anonymity mean for establishing parentage? Should laws regulating access to donor information have retroactive effect? What are the experiences of children conceived with donor sperm? And how can we prepare prospective parents for raising a donor-conceived child? How can we facilitate contact between children and their donor? These are some of the questions that are discussed in the chapters of this book, which is the result of a multidisciplinary seminar about to the right to identity and access to information about genetic origins and parentage organised by RETHINKIN_.

The book starts with a chapter that places the topic in a broader perspective. In this chapter Bou-Sfia explores the right to identity from an international human rights perspective. On the basis of extensive research on this topic, Bou-Sfia states in the Introduction that ‘a right to identity is not one and the same as a right to know your origins’ and ‘the right to identity in the European Convention on Human Rights (ECHR) does not per se contain the same as rights to identity in other instruments’. The chapter examines case law of the European Court of Human Rights (ECtHR) in which the Court specifically refers to identity in the context of Article 8 ECHR. This provides insight into the scope of the right to identity and the concept of identity within the context of Article 8 ECHR.