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