Family law professor on twins who discovered they are not their father's biological children: “Legal paternity can be contestable”
A family from Mortsel discovered that UZ Brussels made a serious mistake during an IVF treatment more than thirty years ago. Twins Wout and Siska (both 30) turn out not to be their father Bart's biological children. Professor of Family Law Gerd Verschelden (UGent) explains the legal consequences.
Sofie Geusens Reporter
06:25
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Can a hospital be required to disclose the identity?
“No,” says Professor of Family Law Gerd Verschelden (UGent). “If sperm from a sperm donor has been used by mistake, anonymity is still guaranteed today. Although that principle is under threat. The absolute anonymity of a sperm donor has been deemed unconstitutional by the Constitutional Court. Minister Frank Vandenbroucke’s cabinet is working on amending the law on medically assisted reproduction to lift that anonymity by June 30, 2027, at the latest. And there will also be a regulation for past sperm donations.”
“Suppose that sperm from a man who wanted to father a child for himself was used at UZ Brussels; even then, that falls under that man’s privacy,” says Professor Verschelden. “The hospital cannot be forced to disclose the identity of the biological father.”
Can't the twins find out the identity then?
They can search for the biological father themselves. There are cases where this has been successful. For example, they can search for genetic material via online databases. Suppose that they subsequently have a strong suspicion as to who their biological father is, then they can take that man to court, which will order a comparative DNA test under penalty of a fine. The judiciary recognizes the right to certainty regarding one's biological ancestry. But first, they have to find that man.
There is also a precedent in which a civil court did not require UZ Ghent to disclose the donor's identity, but did require the release of non-identifiable characteristics of the donor. Examples include medical data, height, and hair and eye color.
Who is responsible? The fertility doctor himself or the hospital?
“There is a precedent at the Court of Appeal in Ghent. A claim was filed there against a urologist who also performed incorrect insemination and used sperm other than that of the intended father,” says Verschelden. “But it depends on exactly who the parties involved summon: the doctor himself or UZ Brussels.”
Can compensation be claimed?
“In that precedent, that was indeed the case. The ruling stated that the sperm mix-up could only have occurred due to negligent conduct by the doctor. There was an error, damage was suffered, and there was a causal link between the error and the damage,” says the professor. “2,500 euros in moral damages were awarded at the time. In this case, it will likely be something similar. A judge here will not award gigantic sums like in the United States.”
Does anything change regarding legal fatherhood?
“There are several factors at play here,” says Verschelden. “If donor sperm was used, it is impossible to compel that donor to do anything. No claim for parentage can be instituted against him. Nor can he himself lay claim to a legal parentage.”
“The legal father consented to the artificial insemination of his wife here, which normally makes his legal fatherhood unassailable. However, that absolute protection of intended fatherhood does not apply here, because the children were not conceived as a result of the act of reproduction to which the man consented. Different sperm was used. In that case, legal fatherhood is indeed contestable.”
But that is also difficult, because social fatherhood prevents biological fatherhood. The law states that if a man behaves socially like a father, his paternity cannot be contested. However, that absolute rule has also been deemed unconstitutional, so a successful challenge is not ruled out. Everything depends on what the children and their parents want.” Legal fatherhood can simply continue to exist, along with a search for the biological reality.
In the latter case, the attitude of the biological father also plays a major role. He can also voluntarily undergo a DNA test. They can meet, and then the children will know their origins. Paternity proceedings do not necessarily have to be conducted for this. This is usually only done when financial consequences are paramount, think of inheritance law, for example.