B.C. judge rules in favour of offspring of anonymous sperm donors

VANCOUVER — A BC-born woman has won her court battle that sought to strike down the B.C. Adoption Act on the grounds that it is discriminatory and unconstitutional for offspring born as a result of anonymous sperm, egg and embryo donors.

Olivia Pratten filed the lawsuit — believed to be the first of its kind in North America — to try to get the same rights as adopted children in learning about their biological parents when they come of age.

B.C. Supreme Court Justice Elaine Adair ruled today that certain Adoption Act regulations were unconstitutional.

The judge, however, suspended the effect of the ruling for 15 months to allow the B.C. government time to amend the act so it does not violate Section 15 of Canada’s Charter of Rights and Freedoms.

Pratten, 29, who was born in B.C. and now is a Toronto journalist. She maintained at trial last year that children born from gamete donations of sperm, egg and embryos should have the same rights as adopted children to learn information, when they turn 19, about their birth parents.

Pratten maintained that it’s important to know the medical and social history in order for her to properly form her sense of identity.

She wanted the court to impose an injunction prohibiting the destruction of medical records of anonymous donors.

Although she had a mother and father while growing up, Pratten feels she is 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, now retired and in his 80s, artificially inseminated Pratten’s mother using donated sperm. Korn claimed the records Pratten sought have been destroyed, but Pratten was not convinced and 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.

Leah Greathead, the lawyer representing B.C.’s attorney-general, argued 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.

The lawyer said that the act, at the time it was argued in court last September, wasn’t fully in effect after a Quebec legal challenge, which was heard in April 2009 by the Supreme Court of Canada and the decision was still pending.

She suggested Pratten’s legal action is premature because of the pending ruling, which will determine federal or provincial jurisdiction.

(On Dec. 22, 2010, the Supreme Court of Canada rendered a divided 4-4-1 decision, striking down portions of the Assisted Human Reproduction Act.)

If the B.C. Supreme Court decided to strike down the Adoption Act, Greathead said, then the effect should be suspended for more than a year to allow the government time to draft new legislation.

Pratten’s lawyer, Joe Arvay, suggested the suspension period should be six months.

Pratten’s mother, Shirley Pratten, said earlier that the provincial and federal governments have failed to preserve the medical records of children born through "gamete" donors, which includes anonymous sperm and egg donors.

The failure to preserve such records has created a lost generation of kids, she said.

"Legal action was a last resort for my daughter, which followed a very, very long and exhaustive legislative process in the area of reproductive technologies," the mother said last September, when the court case was heard.

The mother has been speaking to House of Commons and Senate committees since 1985, trying to win for her daughter the same rights as offspring who are adopted.

A study from the Commission on Parenthood’s Future found children conceived by sperm donation are more likely to suffer from isolation and depression, and are roughly twice as likely as biological children to struggle with substance abuse.

Such children have a unique and often isolating relationship to one’s self that others may not fully understand, the study found.