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British Columbia Court of Appeal reverses decision on sperm donor anonymity

3 December 2012
Appeared in BioNews 684

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.

Olivia Pratten, who was conceived in 1982 with sperm from an anonymous donor, had sued to gain access to details about her biological father's identity. She argued the province of British Columbia in Canada, when updating its adoption laws to allow limited access to such information, had failed to legislate for donor-conceived children.

Under certain adoption arrangements, adoptees may access limited information about their biological parents once they turn 19, unless consent is withheld. Failing to enact similar provisions for donor-conceived people left them unable to access information about their biological origins. This was discriminatory, Pratten argued, rendering the province's adoption laws unconstitutional.

In May 2011, a lower court sided with Pratten in declaring certain provisions of the Adoption Act 1996 as invalid. The judge, who agreed that denying donor-conceived people knowledge about their biological origins can cause them psychological harm, also ordered a permanent injunction against destroying donor records – although the judge stopped short of granting donor-conceived people a positive right to know their biological origins.

Both parties appealed – the Government of British Columbia against the findings of invalidity and Pratten on the denial of a positive right. The British Columbia Court of Appeal allowed the Government's appeal and dismissed Pratten's, reversing the earlier decision. It maintained that offspring had no legal right to know their genetic information and that a ruling to change this may infringe upon other peoples' rights to privacy. The decision effectively means that gamete and embryo donations in the province may remain anonymous.

'There are many non-donor offspring who do not know their family history or the identity of their biological father because of decisions taken by others, or because of the circumstances of their conception', Justice David Frankel said writing for the court.

'However desirable it may be that persons have access to information about their biological origins, Ms Pratten has not established that such access has been recognised as so "fundamental" that it is entitled to independent constitutionally protected status under the Charter', he continued.

Speaking about the decision, Pratten, who continued her legal challenge despite being informed that records regarding her conception were probably destroyed, said she was 'very disappointed'.

'The court has failed to recognise the rights and needs of donor conceived people, and we have a framework in [British Columbia] and across the country for protecting adoptees and that's what we ask to be included in and they basically told us, don't bother', she said.

Pratten says she intends to appeal the decision to Canada's Supreme Court. A federal measure to set up a national database for donor-conception that would have allowed donor-conceived people to learn of their donor identity, if the donor gave consent, was declared unconstitutional by the federal Supreme Court in 2010. It said the federal Government had no authority to set up a registry, which fell under the powers of the provinces.

SOURCES & REFERENCES
B.C. court denies woman the right to know sperm donor dad's identity (with video)
Vancouver Sun |  28 November 2012
Pratten v. British Columbia (Attorney General), 2012 BCCA 40
The Courts of British Columbia |  27 November 2012
Sperm donor identity protected by B.C. court ruling
CBC News |  27 November 2012
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