Are you concerned that you or your loved one could lose capacity to manage finances or health care?

Wills and Estates lawyer Angelique Poutissou, B.A., LL.B.  of Heritage Law are offering free seminars to Vancouver residents to provide information you need to know.

Bring your questions with respect to:

• How do I plan for incapacity?
• What legal documents are required?
• What happens if I lose capacity before I have had a chance to put a plan in place?
• What if my family is not in agreement?

When: Wednesday, March 28th

9:00am: Getting Started with Estate Planning

10:30am: Estate Planning for Blended Families

2:00pm: Adult Guardianship

Where: Heritage Law, Suite 400 – 1681 Chestnut Street, Vancouver, BC V6J 4M6

How: Phone Sarah at 778-786-0615 ext. 115 to RSVP

CKNW – Sept15-11 – 1.30pm- Interview with Monique (part 1)

CKNW – Sept15-11 – 1.40pm – Interview with Monique (part 2)

Sperm donors are used by heterosexual couples with fertility challenges, by same-sex couples and by single women. What are the implications? In this interview, CKNW host Simi Sara and I discuss:

• Recent reports of the high numbers of children conceived from the same anonymous sperm donor
• What you need to think about if you’re planning to use a donor:
  -      The choice of an anonymous versus known donor (friend, family member)
  -       The need for a proper legal agreement with a known donor
• Information sharing with children and the impact of disclosure on children and donors
• Recent caselaw upholding the adult child’s right to know about their biological origins, and
• What we can learn from adoption law reform

One of the main reasons that intended parents choose anonymous sperm donors instead of donors they know is that the current law does not provide a mechanism for a sperm donor to formally relinquish legal parenthood, unless the intended mother has a partner who can adopt the child and the donor consents at the time of the adoption. Anonymity is currently the most simple and practical way to have some certainty that only the intended parent(s) will be recognized as the legal parent(s) of the child. I believe that any law reform relating to disclosure of donor information and identities in B.C. should include the creation of a mechanism for a sperm donor* to relinquish legal parenthood at the time of donation and prior to the conception of any child and for intended parent(s) to formally accept full parental responsibility.

At law, a donor is the natural parent of any child conceived using his sperm. A donor potentially has all the responsibilities and rights of a parent, including the right to apply to a court for custody or access and the responsibility to pay child support if the intended parent applies for support. The intended parent(s)* and a known donor may make an agreement that only the intended parents will have the responsibilities and rights of parenthood, and that the donor will consent to adoption if the intended mother has a partner, but such an agreement is not legally enforceable.

This is completely different than the reality in the adoption context. Under the B.C. Adoption Act, legal parenthood shifts from the biological parents to the adoptive parent(s). The law provides a legal  mechanism for the biological parents to relinquish their legal parenthood – by  consenting to the adoption – where the adoptive parent(s) agree to take on that responsibility. Once an adoption is complete, the adoptive parent(s) are the legal parents of the child, and the biological parents cease to be legal parents. This legal parenthood is reflected in all aspects of the law.

Although legally speaking there may be no difference between known and anonymous donors, in practice anonymity is a primary way that intended parents reach the same on-the-ground result as adoption. If a donor is anonymous, a single mother of a child born in British Columbia can declare that the father is unknown and no information about the father will appear on the birth registration. If the mother is in a relationship, the mother can include a co-parent on the registration (see http://www.vs.gov.bc.ca/births/breg.html ). The intended mother, and her co-parent if she has one, will effectively be recognized as the child’s legal parent(s).

A recent B.C. Supreme Court case would require the B.C. legislature to extend to donor offspring the same rights to information about their biological offspring as adoptees, thereby stripping some of the anonymity from sperm and egg donation (see my blog post “BC Court declares an end to anonymous sperm donation” about Pratten v. British Columbia (A.G.)). The case highlights the mechanisms that allow adoptees to obtain information about their biological origins, particularly as adults.

What is not discussed in the case – because it was not the question before the courts – is that the information sharing mechanisms of adoption only work because they exist along with the shift in legal parenthood which is the heart of adoption. Once an adoption is complete, adoptive parents have some certainty about their status as the only legal parents of the child. This is recognized as being in the best interests of the children. No (or only very rare) adoptive parents would adopt children in B.C. if their parental status was not certain.

I would argue that creating a legal mechanism for a donor to relinquish legal parenthood at the time of donation, prior to conception, in favour of the intended parent(s) is an essential part of any law reform dealing with gamete donation. This could include a mechanism for the intended parent(s) using donated sperm to formally accept full parental responsibility. This would create certainty about legal parenthood and reflect the intention of donor(s) who choose to assist others to have children but never planned to parent those children. It would provide some comfort to donors about the implications of any law reform providing for more open information disclosure. It would encourage more people to consider using known donors or being known donors. For the children conceived by sperm donation, predictability and stability of the intended family unit in childhood and the increased ability to obtain information about their biological origins, including identity disclosure in adulthood, are in their best interests.

* This post deals with sperm donation, but the mechanism could also apply to egg donors.

As an adoptee who has reconnected with her birth family, the mother of a donor child, and a lawyer with a particular interest in assisted reproduction, I was very curious to read the B.C. Supreme Court’s new and landmark decision on the rights of donor offspring: Pratten v. British Columbia (Attorney General), 2011 BCSC 656.

Prior to this decision, children conceived in B.C. using donated sperm or eggs had no right to any information about anonymous donors, especially the donor’s identity.

Olivia Pratten, a journalist who was conceived in B.C. using the sperm of an anonymous donor, successfully argued that the sections of the B.C. Adoption Act and regulations which provide a mechanism for adoptees to obtain information about their biological origins are discriminatory because they are underinclusive and don’t provide equivalent rights to people who were conceived using the sperm (primarily) or eggs of a donor (“donor offspring”).

The court found unconstitutional provisions of the Adoption Act* that:

• require the medical and social history of the child’s biological family be collected during the adoption process and then preserved
• require that prospective adoptive parents receive a copy of that information
• allow for openness agreements between adoptive parents and relatives of the child
• allow disclosure of identifying information if necessary for the child’s safety, health or well-being
• (for adoptions prior to 1996) allow an adoptee who is 19 years or older to obtain a copy of their original birth registration (which usually contains at least the birth mother’s name) and adoption order unless the birth parent registers a veto preventing disclosure
• (for adoptions after 1996) allow an adoptee who is 19 years or older to obtain a copy of their original birth registration and adoption order, except the adoptee must sign an undertaking not to contact the birth parent if the parent registers a no-contact declaration
• provide for similar identity disclosure to birth parents of adoptees over 19
• provide a registry for adult adoptees and other relatives to exchange identifying information (e.g., siblings who did not grow up together)
• set up government services to assist searches and reunions

The court accepted evidence that donor offspring experience the same sense of loss and incompleteness as adoptees, that their lack of knowledge  causes psychological harm, that their health may be compromised by a lack of family medical history, and that they risk unwittingly being romantically involved with a half-sibling. The court also found that the private sector (which increasingly provides detailed medical and social history of donors for intended parents) is no substitute for government regulation, and regulation must come from the provincial government.

The court found that the Adoption Act violates the equality provisions of s. 15 of the Canadian Charter of Rights and Freedoms because it distinguishes between children who are disassociated from a biological parent based on the manner of their conception, and this distinction disadvantages donor offspring who have the same need for information about their biological origins and suffer the same harm from lack of information as adoptees. The court found that donor offspring are the victims of stereotypical thinking that they don’t have the same needs as adoptees or that it is acceptable to ignore their needs. The violation was not a justifiable limit on rights under s. 1 of the Charter.

However, the court did not find that the lack of regulation requiring medical practitioners to obtain and preserve medical and social history was a violation of the right to life, liberty and security of the person under s. 7 of the Charter because s. 7 does not create positive rights, such as the right to know one’s origins. That is, s. 7 can be used to attack legislation that deprives a person of a right but not to require that legislation be created to advance a right.

The court suspended its declaration of invalidity of the Adoption Act provisions for 15 months to allow the Province to enact legislation that remedies the discrimination. If the decision stands, anonymous gamete donation will no longer exist in B.C. It remains to be seen what new law the Province will enact for donor offspring.

I have long thought that the reformed adoption law strikes the best balance possible between the  various needs and concerns of children, birth parents and adoptive parents by generally preserving privacy during childhood if desired by the parents and then allowing information disclosure in adulthood, subject to a veto for birth parents who gave up children on the understanding that their identities would remain secret (although the result of this can be very painful for the adult children whose birth parents do choose to register a veto).

I know from personal experience that obtaining information about one’s biological origins and the possibility of knowing one’s biological parents goes a long way to completing one’s sense of identity and place in the world. No matter how close one is to the family they grew up with, there can be great satisfaction in seeing one’s physical characteristics physically reflected in others (something most people talk a lot about and take for granted) and seeing which character traits are biologically innate and which develop through family culture and influence.

This balance seems to me to apply well to donor offspring. When I chose to become the mother of a donor child, I deliberately chose an ‘identity disclosure’ donor. During childhood, we have fairly detailed non-identifying information about the anonymous donor (several pages worth, including medical history and two photographs). When my child turns 18, we should be able to obtain some form of identifying information, which is something the donor specifically agreed to.

This seems to me a fair default system, and one which hopefully will not discourage too many potential donors. The one missing piece that would remain, which I will discuss in my next blog post, is a mechanism – a cornerstone of adoption – for donors to relinquish legal parenthood in favour of the intended parent(s).

*This is not intended to be a complete list or summary, which is found at Schedule A of the decision