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Articles and Publications

April 2012

A Challenge to Anonymity for Donor Offspring

Amended in 1996, the British Columbia Adoption Act1 and Adoption Regulation2 provide adopted children with access to medical and social
information about their biological parents. But the same legislation and its associated regulations fail to include children conceived through sperm or egg donors, keeping them from accessing this information. Children adopted prior to the legislation had the opportunity to learn their birth parent's identity, if complete information was recorded on registration of live birth, and provided that the parent consented to the release of this information. With the enactment of the legislation, the law now requires the creation and retention of medical and social history of an adopted child.

On May 19, 2011, in a groundbreaking ruling by B.C. Supreme Court Madam Justice Elaine Adair, the Court ruled that certain provisions within this legislation discriminate against donor offspring vis-à-vis adopted children, even though both groups have similar needs for information about biological parents.

This legislative omission was raised by Olivia Pratten, a journalist employed with The Canadian Press, who commenced the constitutional challenge.

Background

Ms. Pratten was conceived in 1981 by her biological mother and an anonymous sperm donor. Ms. Pratten sought disclosure about the identity of her biological father, the anonymous sperm donor. Along with her mother, Ms. Pratten made attempts to access medical information from Dr. Gerald Korn, the gynecologist who performed the insemination. However, Ms. Pratten's right to this information was hindered, namely due to two factors. First, pursuant to the B.C. Adoption Act, adopted children are given the right to obtain records of their biological parents, but offspring resulting from gamete donation are excluded. Second, Ms. Pratten was told by Dr. Korn that the medical records were not preserved and that the information was lawfully destroyed. Records of a patient are destroyed after six years from the last entry recorded, as provided by the B.C. Medical Practitioners Act.3

Ms. Pratten argued that pursuant to the law in B.C., she was being denied important genetic, cultural, medical, and social data and that her health and her future children's health would be jeopardized by lack of this information.

But although Ms. Pratten will not have access to this information that would reveal her genetic makeup and will likely never come to know the identity and biological data of her donor father, she was determined to win the battle for others who are similarly situated.

Ms. Pratten commenced an action in October 2008 against the Attorney General of British Columbia (the "Province") and the College of Physicians and Surgeons of British Columbia (the "College").4 Ms. Pratten essentially argued that the B.C. adoption legislation and its associated regulations are discriminatory under the Canadian Charter of Rights and Freedoms [the Charter].

Ms. Pratten, in her Statement of Claim, sought a Declaration that the B.C. Adoption Act and Adoption Regulation infringed on s. 15 of the Charter due to the omission of donor offspring having the right to access donor records, thereby resulting in discrimination. She sought a further Declaration that the Province and the College did not ensure the preservation of medical records and ensure that such records are made accessible to people such as herself, thereby infringing s. 7 of the Charter. Lastly, Ms. Pratten sought an Order to enact a law that permanently preserved all gamete donor records in B.C., which would in effect establish a registry for sperm donors and children conceived artificially.

B.C. Court Challenge

Ms. Pratten's legal argument was two-fold. First, she argued that the differential treatment between adopted children and donor offspring through the legislation creates a distinction based on the method of conception—the effect of which is that the legislation is underinclusive in not extending the same benefits and protections to donor offspring as it does to adopted children, thereby violating s. 15 of the Charter that guarantees equal protection and benefit of the law. The Defendant, B.C. Attorney General, argued that there is no legislation in B.C. that guarantees any child the right to know their genetic makeup, and that Ms. Pratten is, therefore, unable to show that she was treated any differently based on an enumerated or analogous ground of discrimination found under s. 15(1).

The Defendant furthermore argued that the legislation is by design intended to exclude donor offspring and that differential treatment between adopted children and donor offspring is warranted based on the many differences between state-sanctioned adoption practices and the unregulated regime of gamete donations. In the alternative, the Defendant argued that even if discrimination was to be found, s. 15(2) of the Charter would apply in this case, as the exclusion in the legislation is necessary to ameliorate the conditions of a disadvantaged group, namely adopted children who know neither of their biological parents, unlike a donor offspring who has direct ties to one parent.

Second, pointing to s. 7 of the Charter, Ms. Pratten argued that her right to liberty and security of the person was being infringed upon. She argued that she has a need and right to know her biological makeup and heritage, and where she comes from. She pointed to the legislation, rules and by-laws relating to record-keeping by the College that, she argued, infringed her s. 7 Charter rights by virtue of failing to preserve and protect patient records in the case of a medical necessity.

To counteract Ms. Pratten's s. 7 arguments, the Defendant argued that anonymous sperm donors have a right to privacy that is constitutionally protected,5 and that, furthermore, the court is not the appropriate venue to decide on such sensitive policy choices, which is better left to legislatures.6 Additionally, the Defendant argued that the interests of donor offspring are now protected by current practices and regulation, mainly relying on the Federal Assisted Human Reproduction Act7, which received Royal Assent in 2004. The Court, however, did not accept this argument, because certain relevant sections of the Act were found ultra vires the federal government in a 2008 Quebec Court of Appeal decision. The Court found that this legislation is therefore irrelevant to the issues in dispute.8

The implication of Ms. Pratten's claim is that if she were successful, anonymous gamete donations would no longer be legal in B.C., and donor offspring would have the right to be provided with their donor parent's genetic information when they reach the age of majority.

In a landmark decision, Adair J. ruled in favour of the young journalist.

In her ruling, Adair J. held that it is important for donor offspring to know identifying and non-identifying information about their donor, both from a medical and psychological stand. Madam Justice Adair stated that anonymous donation "is harmful to the child, and it is not in the best interests of donor offspring."9 She further went on to say that adoptive children need to know and have a connection to their biological roots—and this extends to donor offspring. She referred to children conceived through artificial insemination as a "vulnerable group"10 whose physical and psychological health is "too important to leave unregulated."11

In her s. 15 Charter analysis, Adair J. agreed with Ms. Pratten's reasoning. She held that donor offspring who are alienated from their donor suffer harm comparable to that suffered by adopted children and that the circumstances of these two groups are connected.12 Excluding donor offspring from the legislation created a distinction that is based on an analogous ground and on an immutable personal characteristic. Madam Justice Adair agreed with Ms. Pratten that donor offspring are treated differently under the law because "the law draws a distinction based on the manner in which donor offspring were conceived."13 She ruled that the omission discriminates between adopted children and donor offspring.

In the answer to the Defendant's s. 15(2) Charter argument, Adair J. held that adopted children are not more disadvantaged than donor offspring, and that a donor offspring is not less disadvantaged by virtue of not knowing half of his or her origins.14

In its s. 7 Charter analysis, the court held that "security of the person," and not liberty, was infringed upon. Security of the Person protects both the physical and psychological integrity of a person.15 Although no evidence was advanced that Ms. Pratten's security of the person was compromised, the court held, that given that Ms. Pratten has public interest standing in the litigation at hand, the evidence of other donor offspring heard by the court was sufficient to show that some of those children are at risk with respect to their security of the person.16

A s. 1 Oakes test analysis was not satisfied by the Defendant in this case.

The Court's remedy was to declare certain provisions of the Adoption Act and Adoption Regulation of no force and effect, and to suspend the declaration for 15 months in order to allow the Province to redraft the legislation to comply with the Charter. Madam Justice Adair also granted a permanent injunction against the destruction of donor records.

The B.C. government appealed the ruling to the British Columbia Court of Appeal, which was heard on February 14-15, 2012. At the time of publication, no decision had been rendered.

Current Practices at Fertility Clinics

The Pratten case made note of the increased regulation in the field of reproductive technologies since the 1980s, in particular the Semen Regulations and the Health Canada Directive which has largely been driven by the Royal Commission on New Reproductive Technologies, established by the Federal Government in the late 1980s.

Today, women who undergo artificial insemination are able to choose between closed-identity donors (anonymous) or open-identity donors.

B.C. is the first province in Canada to ban anonymity of sperm and egg donors. Of note is that 11 jurisdictions to date have banned anonymous donation—seven in Europe, three in Australia, and one in New Zealand. Sweden was the first country to establish the ban back in 1985.

Conclusion

While the ruling is not retroactive and does not apply to anonymous donations made in the past, the significance of this case is that the best interests of the child and the right to have access to important health information appear to trump the privacy interests of anonymous sperm donors. The ultimate outcome of the case will determine if laws should be changed on whether to keep donor records indefinitely. We undertake to keep readers apprised of the outcome of this case, now before the British Columbia Court of Appeal.


1 RSBC 1996, CHAPTER 5.
2 B.C. Reg. 291/96.
3 RSBC 1996, CHAPTER 285.
4 [2011] B.C.J. No. 931; The action against the College
was subsequently stayed as a result of a consent order.

5 Ibid. at para. 11.
6 Ibid. at para. 10.
7 S.C. 2004, c. 2.
8 Supra note 4 at para. 267.
9 Ibid. at para. 215.
10 Ibid. at para. 208.
11 Ibid. at para. 210.
12 Ibid. at para. 230.
13 Ibid. at para. 19(e).
14 Ibid. at para. 263.
15 Ibid. at para. 297.
16 Ibid. at para. 304.

Reproduced with permission of the publisher from
Risk Management in Canadian Health Care,
Vol. 14, No. 2, April 2012.


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