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Ius et Praxis

On-line version ISSN 0718-0012

Abstract

DURAN RIVACOBA, Ramón. Anonymity of genetic parents and the children's right to know own biological identity: Opossed judicial decisions about the secrecy of identity in the cases of single mother and sperm donors. Ius et Praxis [online]. 2010, vol.16, n.1, pp.3-54. ISSN 0718-0012.  http://dx.doi.org/10.4067/S0718-00122010000100002.

The present paper discuss the solutions that Spain's Constitutional Tribunal and Spain's Supreme Court have issued in filiation cases, in which the faculty to the anonymity of genetic parents and the children's right to know own biological identity, appear confronted. We will contrast a decision of the Supreme Tribunal who declared unconstitutional the norms which allow the unwed mother to refuse the child and protect the secrecy of her identity, with the Constitutional Tribunal's decision (issued a few months earlier) which legitimates the anonymity of the sperm donor in the context of an assisted reproduction proceeding. We argue, against both solutions, that in the first one, maternal anonymity seeks not to protect the mother, but to protect the child before a possible abortion or infanticide so the right to the identity must be limited. To illustrate the convenience and viability of this argument we analyze the "Odiévre" case, in which the European Human Rights Court concluded that the Trench system (that reserves the identity of the mother) was not contrary to the European Covenant. On the other hand, we criticize the Constitutional Tribunal's decision regarding the sperm donor because it overstate the right of privacy of the progenitor against the child's best interest. This contrast exercise shows that the mother, who used to have certain means that could jeopardize the child's life, loses them; however the father (that since 1981 reform that allowed free paternity investigation), benefits with the same dispense that the mother nowadays lack.

Keywords : Filiation Laws; Right to Know Own Biological Identity; Privacy.

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