If donor-conceived children have a constitutional right to know their genetic origins, what protection is there for donors in terms of their constitutional right to privacy?

Abstract

Increasingly, couples and individuals are turning to donor-conception as a means to conceive children. In South Africa, gamete donation is regulated by the National Health Act 61 of 2003, together with the Regulations relating to the Artificial Fertilization of Persons, 2012 and the Children’s Act 38 of 2005 together with its regulations. In terms of these, the disclosure of the identity of a gamete donor is prohibited unless the law or the courts deem it permissible. This leaves a donor-conceived child without means of ascertaining his or her biological parent who is the donor. The lack of a right of a donor-conceived child to know his or her biological parents is seemingly inconsistent when compared with adopted and naturally conceived children. The position may be tenuous in our law therefore, as it may go against the spirit and objectives of the Bill of Rights, where both the Right to Equality is guaranteed, as well as the Right of Access to Information. The position is further complicated by advancements in medical technology since the advent of direct-to-consumer genetic testing, as this makes it possible to track down biological relatives using online genealogical databases. This may make the position of donor-anonymity increasingly unfeasible as increasing numbers of people use direct-to-consumer genetic testing, and the online genealogical databases increase in size. This dissertation will discuss the law as it stands pertaining to whether the position of donor-anonymity is in fact legal under the Bill of Rights. It will then discuss the challenges posed to donor-anonymity by direct-to-consumer genetic testing, and then draw conclusions and recommend that principle of donor-anonymity be abolished, by allowing donor-conceived children access to the identity of their gamete donors, while introducing other measures to protect the donors interests by introducing a framework as to how much interaction a donor-conceived individual is permitted with a donor. These may include laws pertaining to nuisance, trespass or anti-stalking.