The flexibility of confidentiality in assisted human reproductions against the fundamental right to genetic identity

Abstract

The study analyzes the possibility of making the donor's anonymity more flexible in heterologous assisted human reproductions against the right to genetic identity. Donor confidentiality is essential in this form of reproduction, whose use has become popular in recent times. There is, however, controversy over whether this anonymity can be mitigated, especially when confronted with the fundamental right to genetic identity. In Brazil, although there is no specific legislation on the subject, there are several bills in Congress with the scope of regulating the subject. The protection of anonymity is based on utilitarian criteria and on the overlapping of socio-affectiveness, while mitigation protects the individual's right to know their biological origin. The conclusion is that there is a legal, doctrinal and jurisprudential tendency to admit flexibilization when in conflict with the right to genetic identity. The research was developed on three topics: in the first, assisted human reproduction was analyzed as a product of technological, social and legal advances; in the second, it was discussed the fundamental right to genetic identity and whether its knowledge generates any filiation link; and, finally, we analyzed some situations in which the breaking of anonymity is necessary, as well as arguments against flexibilization. The research is qualitative theoretical, supported by specialized literature, with analysis of legislation related to the subject, using the deductive method.