People conceived by donor gametes in Canada do not have a right to access their progenitors' medical records or identities. To change this reality, Olivia Pratten brought litigation in October 2008 against the government of British Columbia, where she was donor-conceived about 30 years ago. In a case that is the first of its kind in North America, she argued that she and people like her have a right to know their origins
Ms Pratten's case challenges us to consider an essential aspect of donor conception. The decision by adults to experience parenthood can entail for children a significant and lifelong loss: the deliberate and intentional separation from their genetic origins and genetically-related extended family. Though adult donors might regard their contribution to a child's conception as 'just an egg or sperm', the child is entitled to view it otherwise.
In May 2011, Ms Pratten won. The trial court ruled that British Columbia had indeed discriminated against her and others on the grounds of equality by failing to give donor-conceived people the same rights to records as adopted people. But in December 2012, the British Columbia Court of Appeal overturned that decision and denied donor-conceived people the right to know their origins. The Court of Appeal took an unfortunate step backward and deprived Canada of a unique opportunity to make a real difference in the lives of thousands of people.
This judicial decision flies in the face of both an international trend and a Canadian Parliamentary declaration. Since 1985, ten jurisdictions (seven European nations, two Australian states and New Zealand) have formally prohibited anonymous gamete donation. Even in the US, which traditionally rejects the regulation of assisted reproduction, the state of Washington recently passed a law that allows donor-conceived individuals to contact clinics and request medical information about their donors once they reach the age of 18.
In 2004, within Canada itself, Parliament declared that 'the health and well-being of children born through the application of assisted human reproductive technologies must be given priority in all decisions respecting their use'.
Indeed, the trial court had ruled that if children's interests come first, then donor anonymity must go. It came to a decisive conclusion: 'Based on the whole of the evidence, assisted reproduction using an anonymous gamete donor is harmful to the child, and is not in the best interests of donor offspring'.
But the British Columbia Court of Appeal overruled that opinion, holding that the province is under no obligation to treat donor-conceived people in the same way as those that were adopted. Rather than compare donor-offspring with adoptees, the court compared them to naturally-conceived children whose mothers do not reveal the identity of the child's biological father. Instead of holding physicians and commercial operators to the professional standard of adoption practice, which promotes and protects the best interests of the children, the court reached down to a standard of private behaviour that is hardly commendable.
In fact, the appellate court seemed more concerned for adults than children. The court claimed that a decision to treat offspring like adoptees 'would result in state intrusion into the lives of many'. By contrast, the lower court denounced anonymity and secrecy because they tip 'the balance heavily in favour of donors and parents, and away from the best interests of donor offspring'.
The best interests of children lie in having the right and opportunity to know their identity. The medical evidence offered to the lower court by medical geneticist, Dr Julie Lauzon, was clear: without half of their family medical history, people are prevented from fully benefitting from early detection of disease, improved treatment, and optimal health promotion with targeted prevention and screening strategies. Anonymity can also lead to unwitting incest and its negative effects for resulting children.
Even if one cares more for adult procreators than the resulting children, openness is of utmost importance. Donors can learn that they have a genetic condition when their donor-offspring develops symptoms. Such vital information can be communicated only if the donor and offspring can be linked through records and knowledge of each other. For example, a 23-year-old man learned that he has a serious genetic heart condition called hypertrophic cardiomyopathy only after one of his donor-offspring was diagnosed with the same condition.
The British Columbia Court of Appeal missed an important opportunity to recognise the equal rights of adoptees and offspring. Instead, it chose to delay justice for people who are intentionally created through medical and commercial practices endorsed by society.
The recent British Columbia Court of Appeal decision is a disappointment but hopefully not a conclusion. Ms Pratten announced that she will now seek leave to appeal to the Supreme Court of Canada. In attempting to bring this important case to Canada's highest court, she will try again to cause the government to grant donor offspring what most others take for granted: the right to know their origins.
Ms Pratten's resilience and determination may yet prove that 'Though the arc of history is long, it bends toward justice'.