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Canadian Court Rules Anonymity for Gamete Donors is Unconstitutional

Jillian Theil

A British Columbia judge has ruled that anonymity for gamete donors in the Canadian province is unconstitutional and that the law is discriminatory because it does not give donor children the ability to identify their biological parents.

A British Columbia judge has ruled that anonymity for gamete donors in the Canadian province is unconstitutional. The ruling referred to sections of the B.C. Adoption Act and Adoption Regulations that provide adopted children – but not donor offspring – the right to information about their biological parents. The judge also issued an injunction to prevent any donor records from being destroyed. Olivia Pratten, a Toronto journalist conceived using an anonymous sperm donor, brought the claim to B.C. courts, arguing that the law is discriminatory because it does not give donor children the ability to identify their biological parents.

The full impact of the ruling remains to be seen, however. In her opinion, Judge Elaine Adair gave the B.C. legislature 15 months to draft legislation, but stopped short of suggesting what it should say. Furthermore, the defense has not yet decided whether it will appeal the decision, which is only applicable to British Columbia. Nonetheless, the judgment makes British Columbia the first Canadian province to ban anonymity for gamete donors. Pratten has said that other donor offspring have contacted her, declaring that they too would like to pursue similar legal action in their respective areas. Ironically, Judge Adair has determined that the records for Pratten’s donor dad have already been destroyed, leaving Pratten without the means to identify her biological father.

The ruling is most significant however, in that it embodies the debates [1,2] occurring around gamete donation. Arguing for “open” egg and sperm donation, Pratten and others want access to details about their biological parents. Without knowing their family health history, they claim that their physical wellbeing and the health of their future children could be compromised. Other advocates add that donor offspring have a right to such information for purposes of self-identity and psychological well-being. Donor Unknown, a new documentary that follows a young American in search of her donor dad, highlights this desire to know one’s biological roots.

But those in favor of “closed” gamete donation assert that anonymity is provided to protect the privacy of the donors involved. Defendants in the British Columbia case argued that “there is no constitutional right for a person to know their origins or genetic heritage while there is a constitutionally protected right to privacy.” There is also concern about donor interference in the life of the intended parent(s) and child.

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Ultimately, Justice Adair’s opinion put donor children’s rights first, writing that anonymous donation “is harmful to the child, and … not in the best interests of donor offspring.” A similar policy has been enacted in the United Kingdom, where children born through gamete donation are able to identify their genetic parents once they reach eighteen.

The B.C. case also highlights an ever-growing global conversation about the complex questions and profound implications of assisted reproductive technologies. If prospective parents go to such great measures to have biologically related children, should we be surprised when the children want to connect with their biological parents? What happens when donor-conceived children want to identify their biological parents? What happens when they want to meet them? Make them a part of their lives, in some way? What impact might this have for the donors? For the prospective parent(s)? For the kids?

Sites such as Donor Sibling Registry (DSR) and Confessions of a Cryokid, and films such as Donor Unknown, BioDad, and The Kids Are All Right are popping up to explore these issues. Journalists and policy-makers are beginning to pick up on the discussions, too [1,2]. And the B.C. case is further proof that this is one issue that’s not going away anytime soon.

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