Olivia Pratten in downtown Toronto, Sept.29 2010. Pratten a sperm donor child wants to launch a Charter challenge seeking preservation of files linked to the gamete (sperm) donation in British Columbia. She is fighting for her biological father's (a medical student sperm donor) records.Deborah Baic/The Globe and Mail
The British Columbia government is asking a judge to throw out a landmark legal challenge seeking to end the anonymity of sperm donors.
Olivia Pratten, 28, wants the B.C. Supreme Court to order the province to create a system that ensures donor records are kept indefinitely and to prevent existing records from being destroyed.
She also wants children conceived through donation to have the ability to obtain information about a donor's identity and medical history - effectively making it impossible for them to remain anonymous.
Ms. Pratten, a Toronto-based journalist who works for The Canadian Press, launched the lawsuit after fighting for more than a decade to obtain records about her conception, arguing such information is vital to her health and to ease the psychological stress of not knowing who her biological father is.
Ms. Pratten's mother, Shirley, became pregnant through sperm donation after she and her husband failed to conceive.
The doctor who performed the procedure insists he destroyed the documents in the 1990s because physicians aren't required to keep patient records for more than six years.
B.C. government lawyer Leah Greathead told court that because the records surrounding Ms. Pratten's case no longer exist, there would be no point for the judge to consider whether to order them returned.
And because Ms. Pratten wouldn't be affected by any order setting up a database of sperm-donor records, Ms. Greathead argued, the young woman doesn't have the right to bring forward a case on behalf of other donor children.
"The facts are that Dr. [Gerald]Korn has told Olivia Pratten and her mother that the records have been destroyed, that he doesn't have them, that he doesn't know who the father is," Ms. Greathead told the court Wednesday.
"There is just nothing this court or anyone can do to bring back those records. We'd need a time machine."
Ms. Pratten and her mother filed affidavits saying they don't believe the documents were destroyed, pointing to what they believe are inconsistencies in what Dr. Korn, now in his late 80s and retired, has told them.
Ms. Greathead pointed to the current system in B.C., which wasn't in place when Ms. Pratten was born, that allows women considering sperm donation to opt for a donor who has agreed to be identified once the child becomes an adult.
She also noted the extensive work done at the federal level to legislate assisted reproduction, including a royal commission in the 1990s and the introduction of the Assisted Human Reproduction Act in 2004. That legislation prevents donors' health records from being destroyed, but still allows donors to remain anonymous.
The Quebec government challenged the law, taking it to the Supreme Court of Canada, arguing it treads on provincial jurisdiction, but the top court has yet to rule.
Ms. Pratten said even the updated federal and provincial rules don't go far enough because they still allow for anonymous donation. More importantly, she said, they don't help children who were born before they took effect.
She said assisted reproduction should be handled the same way as adoption. In B.C., adoption records are kept and adopted children can find out the identities of their birth parents.
"This case really is about recognition - it's about recognizing that donor conception does matter, that people who want to know their biological information do matter," Ms. Pratten said in an interview from Toronto.
"If you don't want to be identified, don't be a donor, it's that simple."
Ms. Pratten has long been an advocate for the rights of donor children, having testified several times at Senate and Commons committees in Ottawa and appearing at numerous fertility and reproduction conferences.
She said her parents told her how she was conceived at a very young age, and they are supportive of her court challenge. Ms. Pratten's mother was in the gallery on Wednesday.
"My parents were always open with me and allowed me to think and feel for myself," she said. "A lot of families, this issue creates a lot of tension and most people don't even know they're conceived this way. Most people feel very frustrated and not represented at all."
Ms. Pratten's lawyer said regardless of whether his client's documents still exist, the court should allow her to argue the case on behalf of other people conceived through donation
Joseph Arvay told the court there are thousands of children who, like Ms. Pratten, still don't know where they came from.
He provided affidavits from others in Ms. Pratten's situation, whose stories, he said, demonstrate "what it means to these children, now adults, not to be able to know about their origins or their social, cultural, religions, ethnic, medical or genetic histories."
"This case is not just about Olivia, even though when she started, she had great hopes that she could obtain her records," said Mr. Arvay.
There is currently an injunction preventing the destruction of any documents related to donor conception in B.C. If the case is thrown out, Mr. Arvay said injunction would end and more children will see records that could trace their origins destroyed forever.
Madam Justice Miriam Gropper reserved her decision.
The case is scheduled to be heard in October if the province isn't successful in having it dismissed.
However, if the court decides the case can proceed, the province wants the trial delayed until after the Supreme Court of Canada rules on the Assisted Human Reproduction Act, because that case will deal with some of the same issues.
James Keller