OLG Hamm: Mother was dependent on psychotherapy
If an artificial insemination is carried out with "wrong" sperm, the mother can be entitled to compensation for the physical and psychological stress involved. The Higher Regional Court (OLG) Hamm decided this in a judgment announced on Wednesday, April 4, 2018 and awarded a lesbian mother a compensation for pain and suffering in the amount of 7,500 euros (file number: 3 U 66/16).
The woman, who lived in a same-sex partnership, had been fertilized in 2006 with the help of donor sperm from an unknown donor. As a result of the so-called heterological insemination, she became the mother of a girl in January 2007. The life partner also adopted the child together.
The couple wanted a second child. The donor sperm intended for artificial insemination should come from the same man who was the producer of the first child. The mother wished that her children were "full siblings".
When the woman finally gave birth to a boy in January 2009, she later wondered that her two children had different blood types.
In August 2011, she learned that the children were not from the same sperm donor.
The mother, who had since separated from her life partner, asked for damages and compensation for the pain from the doctors who had carried out the artificial insemination. The fact that her children are not full siblings triggered a physical and psychological stress situation with exhaustion, depressive episodes and feelings of guilt towards the children. Long-term psychotherapeutic treatment was therefore necessary.
The doctors attributed the psychological problems to the separation from the partner.
Both the Münster Regional Court and the OLG awarded the woman a pain and suffering allowance of 7,500 euros due to the health problems they had suffered. Doctors would have to be held responsible for the physical and psychological effects that occurred as a result of the “wrong” donor sperm, according to the OLG in its judgment of February 19, 2018.
However, because of the health problems suffered, the plaintiff could not claim the information about the sperm donor's data, such as name, date of birth or place of residence, which was also in demand. The relevant data are not "medical records" in which the applicant is entitled to access.
However, the children who are also complaining in the process can request information from the reproductive physicians about the identity of their genetic father, according to the OLG, referring to a decision by the Federal Court of Justice on January 28, 2015 (file number: XII ZR 201/13; JurAgentur report from Judgment day).
Parents could also ask for this information for their child, "if they wanted to inform the child about the identity of the producer at a later date," the OLG decided. fle