People who might never have known who their biological mother or father was will have that opportunity now that a B.C. Supreme Court judge has declared unconstitutional the legislation that denied donor offspring the same rights as adoptees.
The ruling will make British Columbia the first province in Canada to ban anonymity for sperm and egg donors.
The case was brought forward by Olivia Pratten, a 29-year-old journalist born in B.C. and who now lives in Toronto. When Ms. Pratten was five, her parents told her she was conceived using sperm from an anonymous donor. When she was older, Ms. Pratten went to the doctor who performed her mother’s procedure and asked for information about her biological father. She was rebuffed because the donor had wished to remain anonymous.
Ms. Pratten testified it was discriminatory that she could not obtain the same information adopted children were entitled to under B.C.’s Adoption Act and Adoption Regulations. She said her health and the health of her future children could be compromised by the lack of details.
Madam Justice Elaine Adair agreed, stating in her written ruling “anonymity is not in the child’s best interests.” The judge said donor offspring and adoptees have common struggles and should be entitled to the same information. She called those conceived through artificial insemination a “vulnerable group” whose physical and psychological health is “too important to leave unregulated.”
She declared sections of the adoption act unconstitutional and gave the province 15 months to rewrite it. Judge Adair declined to comment on what should be in the revised legislation.
Ms. Pratten, who’s been advocating for an end to anonymous donation since she was in her teens, was pleased.
“I’m really happy. It’s the end of donor anonymity in B.C. It’s the first time this has happened in North America. It’s a landmark decision and it’s about time,” she said.
Her lawyer, Joseph Arvay, called the case a monumental victory for a segment of the population that has for too long been ignored. However, the ruling is not retroactive, so it will not affect anonymous donations made in the past.
Albert Yuzpe, co-director of the Genesis Fertility Centre in Vancouver, wondered what impact the ruling will have. He said virtually all of the women in B.C. having sperm donation use donors from the United States. Dr. Yuzpe said he didn’t believe donors from the United States could be forced to reveal their identity.
Mr. Arvay said there will be no other choice.
“What the court made very clear is that the rights of offspring of sperm donation in British Columbia can no longer depend on the practices and policies of private clinics, particularly fertility clinics or sperm banks outside of the jurisdiction. If you’re going to have sperm donation happening in British Columbia, it’s going to have to be regulated and regulated in a way which gives the offspring of sperm donation the same rights and opportunities as adopted kids.”
Before Thursday’s ruling, 11 jurisdictions had banned anonymous gamete donation – seven in Europe, three in Australia, one in New Zealand. Sweden was the first in 1985.
Juliet Guichon, who works at the University of Calgary’s office of medical bioethics and has just written a book on assisted reproduction, said those jurisdictions saw a decline in supply after the bans were implemented. “Usually what happens is that there’s a dip, and then it goes up, and sometimes it surpasses the supply that occurred before.”
But Ms. Guichon said Canada might face one particularly difficult hurdle – sperm and egg donors can’t be paid here, which could affect supply.
In a written statement, B.C.’s ministry of the attorney general said it needs time to review the decision and has not decided on an appeal.
Mary Ellen Turpel-Lafond, the province’s representative for children and youth, said the ruling caps a landmark case that could have implications across the country.
“It certainly has charted new course. This is a significant decision that suggests the rights of the child and the right to have health information and other things that are important to their well-being as they grow and become adults trumps the privacy interest of the system behind the anonymous sperm-donor program,” she said.
Although the ruling will help donor offspring, who in the future want to learn the identity of a parent, the news wasn’t all good for Ms. Pratten. Judge Adair said she believed the doctor who performed Ms. Pratten’s mother’s procedure had destroyed the donor records. At the time, doctors were required to keep the records for only six years. The judge also granted a permanent injunction to prevent any more records from being destroyed.
“If you’d asked me a decade ago, I would have sat here and been quite upset. But it is what it is. [I’m focusing on]what can I do to help other people moving forward,” Ms. Pratten said.