Region: Europe
Year: 2011
Court: Supreme Court
Health Topics: Child and adolescent health, Health information, Sexual and reproductive health
Human Rights: Right of access to information, Right to family life
Tags: Assisted reproductive technology, Children, Confidentiality, Disclosure, Informed choice, Non-disclosure, Patient choice, Secrecy
N.T.V., a recipient of auxiliary reproductive technology (ART), submitted an application to declare invalid part of an order issued by the Ministry of Healthcare on February 26, 2003. The order (No. 67) approved instruction on the usage of various methods of ART. In particular, N.T.V. objected to paragraph 6, which prevents the establishment of paternity where a gamete donation results in the birth of a child.
N.T.V.’s application argued that the paragraph contradicted Article 19 paragraph 2 (freedom from discrimination) of the Russian Federation Constitution and Articles 49 and 80 of the Russian Federation Family Code. N.T.V. also submitted that preventing her from identifying the father of her child, who was paid to donate his sperm, disadvantaged her child and violated her right, and the right of her daughter, to establish paternity.
The Court denied N.T.V’s application to invalidate paragraph 6 of the order.
The Court held that under Article 35 the identity of the donor constitutes medical secrecy. Consequently, although a woman has a right to legal and medical information about the procedure, the results of medico-genetic examination, and external data and the nationality of the donor, the right does not extend to the donor’s identity.
The Court recognized that a woman receiving ART from a licensed institution enters into a legal relation with that instruction, which notifies her that the gamete donor does not undertake any parental responsibilities. In light of this the Court held that Article 49, allowing the establishment of paternity by judicial means, is not applicable to cases where a child has been conceived through ART, as the donor cannot be recognized as a parent of the child. Similarly, Article 80, which regulates parental duties for child maintenance, and Article 19, paragraph 2 of the Constitution, which guarantees equality, do not apply.
“Information about carried out artificial insemination and embryo implantation as well as identity of a donor constitute medical secrecy, access to which without citizen’s consent is allowed only in cases envisioned by Article 61 of the Fundamentals of the legislation.” (Page 2)
“The list of information about donor, which could be received by a woman, who requested the specialized medical help with use of ART, according to Article 35 of the Fundamentals of the legislation is limited to information about his medico-genetic examination, external data and nationality.” (Page 2)
“Thus, woman who gave birth to a child as a result of artificial insemination and donor do not enter with each other into any relations, therefore provisions of Article 49 of the Family code of the Russian Federation about establishment of paternity by juridical means are not applicable for these cases and such donor cannot be recognized as a father of a child conceived using ART.” (Page 2)