VANCOUVER – A judge has declared that a B.C. law that shields the identities of sperm or egg donors is discriminatory – but has suspended that declaration for 15 months to allow a new law to be drafted.
The ruling by B.C. Supreme Court Madam Justice Elaine Adair relates to the case of an Ontario woman who has been fighting for the right to information about her biological father, an anonymous sperm donor.
In the 124-page ruling released Thursday, the judge also ordered a permanent injunction banning the destruction of donor records.
The judge found that the current law is discriminatory because it allows the release of information about biological parents to adopted children – but not to children born through anonymous sperm or egg donors.
She asked that a new law be passed by the legislature that complies with the Charter of Rights but declined to make any recommendations as to what the new law should say.
The plaintiff in the case, Toronto journalist Olivia Pratten, 29, had at trial asserted her right to to all "non-identifying" information on her biological father.
She claimed that for the B.C. government to deny her vital genetic, cultural, medical and social information, while it provided that same information to adopted children, was to violate her rights to equality and liberty and security.
Her mother, Shirley Pratten, had been unable to conceive a child with her husband because of medical complications he had.
In 1981, Dr. Gerald Korn, a Vancouver physician, administered an insemination procedure on the mother using the sperm of an anonymous donor and Olivia was born in B.C. on March 24, 1982.
When she turned 19, Olivia Pratten visited Korn, who provided some information about the sperm donor but declined to give his identity.
He told her that her father was a Caucasian medical student with a stocky build, brown hair, blue eyes and type ‘A’ blood.
According to court documents, Korn told her that after his retirement, the records of the donor would be provided to the B.C. College of Physicians and Surgeons and stored for two years before being destroyed.
After she learned that Korn had retired, in 2003, Pratten went to the College, which told her that they didn’t have any records.
The college told her that Korn was only required to keep patient records for six years, after which he could destroy them, says a document filed in B.C. Supreme Court by Pratten.
Pratten experienced "anxiety and stress" about her inability to learn anything about her biological father.
That records could be destroyed, denying her half of her biological heritage and medical information, made her feel like a "second-class citizen," she said.
Though Korn claimed to have destroyed the records, Pratten said she didn’t believe him and wanted to pursue the case on behalf of others in any event.
Pratten sought to have the court order the preservation of all existing egg and sperm donation files in B.C. indefinitely and for a process to access those records when a child reaches the age of majority.
In a document filed in court, the attorney-general’s ministry said it didn’t know the identity of Pratten’s father and didn’t know any of his medical or social history.
It said it was wrong to compare sperm or egg donor cases with adoptions because in those cases, information was provided voluntarily by birth parents, not through physician records.
The scheme proposed by the plaintiff would be contrary to the principles of fundamental justice and the Charter rights of donors, who agreed to provide sperm on condition of anonymity, says the ministry.
Comments
Want to discuss? Please read our Commenting Policy first.