Posted on July - 04 - 2011
B.C. government appeals landmark sperm donor ruling
VANCOUVER — The B.C. government is appealing a landmark ruling last month that gave the offspring of sperm donors the same rights as adopted children.
The government, which filed its notice of appeal on Friday, plans to argue that the trial judge erred in law by finding that the provisions of B.C.’s Adoption Act were discriminatory and therefore unconstitutional.
Last month, B.C. Supreme Court Justice Elaine Adair struck down the Adoption Act but suspended the effect of the ruling for 15 months to allow the government time to draft legislation that does not violate Section 15.1 of Canada’s Charter of Rights and Freedoms.
The judge also granted a permanent injunction to prohibit the destruction and disposal of the records of gamete donors, including anonymous donors of sperm, eggs and embryos.
The landmark lawsuit — the first of its kind in North America — was filed by B.C.-born journalist Olivia Pratten, who now lives in Toronto.
She sought to get the same rights as adopted children in learning about their biological parents when they come of age.
Pratten, now 29, was thrilled by the win, saying it was a victory for all gamete donor offspring.
At the time, her lawyer, Joe Arvay, said: “This case represents a monumental victory for our client, Olivia Pratten, and all the donor offspring she represents who have for too long been disadvantaged by their exclusion from the legislative landscape which has promoted and perpetuated prejudice and stereotyping and caused them grave harm.”
While the government is appealing the ruling, it also plans to establish a program for offspring of gamete donors.
Arvay argued at trial last year that children born from gamete donations should have the same rights as adopted children to, when they turn 19, learn information about their birth parents.
Pratten maintained it’s important to know the medical and social history of biological parents in order to properly form a sense of identity.
She wanted the court to impose a permanent injunction prohibiting the destruction of medical records of anonymous donors, which the court did.
Although she had a mother and father while growing up, Pratten felt she was missing an important part of her background because she has been unable to learn anything more than the basic physical details about her biological father.
Her parents could not have children so they turned to a Vancouver clinic operated by Dr. Gerald Korn.
Korn, who retired in 2002 and is now in his 80s, artificially inseminated Pratten’s mother using donated sperm. Korn claimed the records Pratten sought were destroyed in 2002, but Pratten said she was fighting for all children born through similar circumstances.
Pratten sought to change the system so that donors and offspring can contact each other if there is mutual consent when the offspring become adults.
There now is a trend to make it optional for sperm donors to allow contact by offspring. Such countries as Sweden, Holland, the U.K. and parts of Australia have dispensed with the anonymity of gamete donations.
Leah Greathead, the lawyer representing B.C.’s attorney-general, argued at trial that the privacy rights of anonymous sperm donors should outweigh the constitutional rights of donor offspring.
She pointed out that the federal government has already enacted legislation, the Assisted Human Reproduction Act, to regulate gamete donors and to create a national sperm bank.
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