Conversations on adoption, family, parentage and the law

Sperm donor case now in Court of Appeal

This week, the BC Court of Appeal is hearing the case of Olivia Pratten, the Ontario journalist who is seeking the right of children born through sperm donation to know their biological origins.

Last year, Madam Justice Elaine Adair of the British Columbia Supreme Court struck down provisions of the Adoption Act as unconstitutional, finding that the Act failed to provide Ms. Pratten and other children born through assisted reproductive technologies with the same rights to information about their biological parents as are provided for children who have been adopted (Pratten v. British Columbia ).  Justice Adair gave the province 15 months to correct the problem by amending the legislation.  She also ordered an injunction that prohibits sperm banks from destroying donor records or transfering those records outside of B.C.

Prior to the injunction, it was lawful for such records to be destroyed after after six years, although practices varied between clinics.

The BC government is appealing the decision, arguing that existing laws permitting anonymous sperm donation are constitutional.

“Donor offspring of anonymous donors. . . are left with the same sense of genealogical bewilderment that has so negatively affected adopted children’s sense of self, belonging and identity and indeed led to the transformation of adoption laws” — Dr. Diane Ehrensaft, expert opinion in Pratten v. British Columbia

For Ms. Pratten herself, any change to the law is likely too late.  It sounds as though the records that could have identified the sperm donor in her case were destroyed several years ago.   As medical advances lead to increasing use of assisted reproductive technologies,  however, the  issues of whether and how individuals in Ms. Pratten’s situation can access information about their genetic origins– and how those records are to be preserved and regulated– must be addressed.   I will be following the Court of Appeal’s decision with interest.