The Right of the Children to Know Their Origin in Adopting and Medically Assisted Reproduction

Abstract

The progressive developments in biotechnology present many delicate issues to be resolved in the context of family law. Among them, the child's right to know their biological origin is a controversial issue and increasingly debated in recent years, as it is in conflict with the right of the parent to remain anonymous. The question is considered of particular interest to adopted children and those born and leads through medically assisted procreation (M.A.P.) given the difference in treatment offered by the legislation in individual countries. Beyond the sociologists’ reflections, the analysis is faced in legal solutions that are offered in order to reconcile two fundamental human righs, though not absolute (right to anonymity and the right to identity of the biological parents of the child). If compared to the adopted children, there is a general tendency to ensure this right effectively, towards the children born through the M.A.P. there is greater resistance. The community and international instruments provide the protection of both rights, with a trend in recent years to promote the child's right to know the truth rather than the anonymity of the biological parents. In particular, art.8 of the European Convention on Human Rights (E.C.H.R.) while ensuring respect and protection for privacy and family rights, guarantees at the same time two opposing rights, such as the right to privacy and the protection of the personal data and the right to know one’s origins. But how to reconcile these two rights given the important consequences on the right to health of the child? In addition, which option should be preferred: a) ensuring the stability of a family relationship already established, although artificial (thereby excluding any possibility to search for biological truth); or b) recognizing to the children who have reached a certain psycho-physical maturity the right to know their origins (thus sacrificing the right of the biological parent to remain anonymous)? In addition, would it be justifiable a different treatment on the point between adoption and M.A.P. ?

DOI: 10.5901/mjss.2013.v4n6p605