Page URL:

Countdown begins for ending donor anonymity in British Columbia: Lessons for us all?

6 June 2011
By Professor Eric Blyth and Dr Marilyn Crawshaw
Professor Eric Blyth is Professor of Social Work at the University of Huddersfield and Visiting Professor in the Department of Applied Social Sciences, Hong Kong Polytechnic University. Dr Marilyn Crawshaw is Honorary Fellow at the University of York, an independent researcher and practitioner, and national adviser to UK DonorLink. She is speaking here in a personal capacity
Appeared in BioNews 610

The regulation of assisted human reproduction in Canada has had a long and tortuous history. Twenty-one years after a Royal Commission appointed by the federal government recommended legislation (1), and following several failed attempts to get legislation through the Canadian parliament, the Assisted Human Reproduction Act 2004 came into force (2).

The Act provided for the establishment of a Personal Health Information (PHI) Registry that would create a national database maintained by the federal regulator, Assisted Human Reproduction Canada, to record information relating to donors, patients using donated embryos or gametes and donor-conceived offspring. It would also allow for offspring to learn the identity of the donor where the donor had specifically consented. However, the PHI Registry was never set up and in December 2010, as a result of a constitutional challenge by the provincial government of Québec that specific measures in the Act violate areas of provincial legislative authority, the PHI Registry was one of several provisions declared unconstitutional by the federal Supreme Court (3).

As a result of the Supreme Court's decision that the federal government has no authority to establish a national register, attention therefore focuses on Canada's provincial governments to promote the interests of donor-conceived people. This includes obtaining information about their donor (and any other genetic relatives they may have as a result of the donation). It has fallen to British Columbia (BC) to pioneer this process – a challenge to which it did not step up willingly.

In May, the BC government found itself on the wrong end of a BC Supreme Court ruling which has given it fifteen months to come up with proposals to end donor anonymity in the province (4). The ruling upheld a claim by Olivia Pratten, a donor-conceived adult, that donor-conceived people in BC were discriminated against compared to adopted persons who, under BC law, were entitled to access information about their birth origins, and that such discrimination violated Section 15 of the Canadian Charter of Rights and Freedoms (5), (6).

Unless it successfully appeals the ruling, BC will now join a growing number of jurisdictions that have ended donor anonymity (7). It is therefore in a position to learn from the experiences of those that have already gone down this path, together with the messages from research and professional experience, and to promote 'best practice', rather than opt for minimum compliance. We suggest 'best practice' should include:

· the need to review family law to ensure donors are protected from financial responsibility for offspring and that donors cannot assert any parental rights over them;

· placing limits on the number of offspring per donor;

· the active promotion of disclosure through counselling and preparation for prospective parents, together with later support through the provision of 'Telling and Talking' workshops and literature such as those of the UK's Donor Conception Network (8) and the Victorian Assisted Reproductive Treatment Authority, Australia (9), and ongoing access to psycho-social professionals;

· the formal recording of the use of donor gametes/embryo(s) in the birth registration process; and

· access to funded mediation services when the parties wish for later information exchange and/or contact.

One issue for all jurisdictions that have abandoned anonymity is how to deal with past donor procedures, both where records are known to exist (as in the case of BC since the destruction of donor records was subject to a previous court ruling that has now been made permanent (4)) and where they do not. None of these jurisdictions has applied the new rules retrospectively because of the perceived conflict between the rights of offspring to information and the rights of donors who donated on the basis of their anonymity (although establishing a voluntary contact register for past donations that includes a DNA database and appropriate professional support would go some way to address this).

While voluntary retrospective provision brings its own challenges - including the lack of absolute certainty that is a feature of DNA-based rather than records-based 'linking' and the need for support to donors who had never anticipated considering disclosure (10) - a recent federal inquiry into donor conception in Australia did recommended such a register (11). At present there are at least two such state-funded registers already in existence - the UK DonorLink Register established in 2004 (12) and the Fiom KID Register established in the Netherlands in 2010 (13). Others will surely follow. Such services require secured funding in the same way as for those provided prospectively. The proposed removal of state funding for UK DonorLink while retaining funding for the post-legislation HFEA (Human Fertilisation and Embryology Authority) Register of information - despite ministerial recognition of its importance - is of great concern.

There is a further challenge that flows from the BC ruling that has resonance for other jurisdictions, namely the implications for those who import gamete(s) for use within the jurisdiction where they normally reside or who seek treatment outside it. It should be a fairly simple matter to require clinics to use only imported donated gametes that comply with domestic laws, as in the UK. We recognise that managing treatment undertaken in other jurisdictions is considerably less amenable to regulation, although a rigorous approach to requiring compliance where this comprises any form of partnership arrangement between clinics in home and destination jurisdictions is something that more regulators, including the UK, would do well to adopt if they were to remain true to the principles on which decisions such as that in BC are based.

01) Proceed with care
Royal Commission on New Reproductive Technologies |  1993
02) Assisted Human Reproduction Act 2004
|  25 January 2022
03) Reference re Assisted Human Reproduction Act 2010 SCC 61
Supreme Court of Canada |  22 December 2010
04) Pratten vs British Columbia (Attorney General), 2011 BCSC 656
Supreme Court of British Columbia |  19 May 2011
05) Canadian Charter of Rights and Freedoms
|  25 January 2022
06) Landmark ruling ends sperm and egg donor anonymity in B.C.
The Globe and Mail |  19 May 2011
07) Blyth E and Frith L, 'Donor-conceived people’s access to genetic and biographical history: An analysis of provisions in different jurisdictions permitting disclosure of donor identity'
International Journal of Law, Policy and the Family 23:192-210 |  2009
08) Donor Conception Network
|  25 January 2022
09) Time to tell seminar
Victorian Assisted Reproductive Treatment Authority |  7 May 2011
10) Crawshaw M and Marshall L, ‘Practice experiences of running UK DonorLink, a voluntary information exchange and contact register for adults related through donor conception’
Human Fertility Vol 11 No 4 pp 231-237 |  2008
11) Inquiry into donor conception in Australia
Senate Legal and Constitutional Affairs Committees |  25 January 2022
11) Inquiry into donor conception in Australia
Senate Legal and Constitutional Affairs Committees |  2010
12) UK DonorLink
|  25 January 2022
13) DonorKind
|  25 January 2022
3 December 2012 - by Ruth Retassie 
A British Columbia court has ruled that donor-conceived people do not have a constitutional right to know their biological origins and has reversed an earlier decision that would have effectively removed donor anonymity in the province....
16 April 2012 - by Dr John Appleby and Dr Lucy Blake 
The Nuffield Council on Bioethics has launched an inquiry on the ethics of disclosure in families with children conceived using donated reproductive tissue (i.e. eggs, sperm, or embryos). In spring 2013 the Council will publish a report on its findings, making policy recommendations where appropriate. This call for evidence is part of a long history of debate on the topic of disclosure in the UK and runs parallel to international debates in the USA, Canada, Australia and Europe...
2 April 2012 - by Rosemary Paxman 
A law reform committee in the Australian state of Victoria has recommended that all donor-conceived people should be able to access identifying information about their donors...
20 February 2012 - by Julianna Photopoulos 
Lawyers representing British Columbia's government were at the Canadian province's Court of Appeal last Tuesday attempting to overturn an earlier ruling which would effectively end anonymous gamete donation...
8 August 2011 - by Professor Naomi Cahn and Wendy Kramer 
The largest study to date of donor-conceived people has just been published in Human Reproduction. Its findings show the need to address two different effects of anonymous donating: first, when should children find out that their parents used donor sperm or eggs; and second, should children ever find out the identity of their donors?...
23 May 2011 - by Sarah Pritchard 
Anonymous egg and sperm donation will no longer be permitted in British Columbia (BC), Canada, after a donor-conceived woman, Olivia Pratten, took the provincial government to court to argue that its adoption laws discriminated against individuals such as herself....
17 January 2011 - by MacKenna Roberts 
The Supreme Court of Canada has ruled that several key powers to regulate and licence fertility practices under Canada's Assisted Human Reproduction Act (the Act) should fall under provincial jurisdiction....
29 October 2010 - by Professor Eric Blyth 
As reported in BioNews on 25 October 2010 (1), Olivia Pratten, a 28-year old Toronto journalist who was conceived as a result of anonymous donor conception provided by a Vancouver physician, Dr Gerald Korn, is challenging the protection of donor anonymity in the Supreme Court of British Columbia. The Court agreed to hear the case despite claims made in September by lawyers acting for the Government of British Columbia that the physician's records have been destroyed, and despite an injunction...
7 June 2010 - by Professor Jocelyn Downie 
In the past three months, three members of the Board of Directors of Assisted Human Reproduction Canada (AHRC) have resigned. This set of resignations is cause for serious concern and requires urgent attention from the federal Parliamentary Standing Committee on Health and Parliament itself....
10 November 2008 - by Sarah Pritchard 
A 26 year old woman in Canada conceived using donor sperm has begun legal action to attempt to make available the identities of anonymous sperm donors, including that of her own father. Olivia Pratten is acting on behalf of all those in British Columbia (BC) conceived using...
to add a Comment.

By posting a comment you agree to abide by the BioNews terms and conditions

Syndicate this story - click here to enquire about using this story.