A Toronto, Ont. woman will appear before the British Columbia Court of Appeal Feb. 14 in a long-running legal battle to overturn a law that stops her from accessing information about her biological father.
Olivia Pratten, a journalist in her 20s, began her legal battle with the B.C. government more than a decade ago after requests to preserve her donor records indefinitely were denied by the now-retired fertility specialist her biological mother saw.
Although she knows her biological father’s blood type, build, and status as a medical student at the time, according to court documents in the case Pratten still does not know her medical history or who exactly her biological father is.
“Like many donor offspring, Ms. Pratten knows almost nothing about the man who provided one-half of her genetic makeup,” wrote B.C. Supreme Court Justice Elaine Adair in Pratten v. British Columbia.
“She has long felt that a part of her identity is missing. She risks inadvertently forming a romantic relationship with a half-sibling. She worries her health, and the health of her future children, could be comprised by the lack of information.”
In B.C., sperm banks are only required to keep sperm donor records for six years, after which they can be shredded or incinerated.
Vancouver, B.C., fertility specialist Gerald Korn, who is now retired but treated Pratten’s biological mother, confirmed Pratten’s donor records had been destroyed in accordance with the practice, court documents show.
Currently, there are no North American jurisdictions that have legislation that forces donors to be identified, unlike in much of Europe, including Sweden.
But, in May 2011, the province came close to changing that, with Adair suspending her decision in favour of Pratten for 15 months in order to allow the B.C. legislature time to redraft the Adoption Act’s compliance with the Charter of Rights.
But, lawyers for the B.C. government are seeking to overturn Adair’s decision instead. This week, they will argue the anonymous sperm-donor law is constitutional. The appeal is scheduled for Feb. 14 and 15.
Adair had ruled previously that the law was unfair because it stopped the offspring of donors, like Pratten, from finding out who their parents are, but allowed adopted children to find out information about their biological parents.
“In my view, the evidence in this case provides strong support for the conclusion that the circumstances of adoptees and those of donor offspring with regard to the need to know and have connection with one’s roots, are closely comparable,” wrote Adair in Pratten.
Still, Tuesday’s appeal isn’t the first time such comparisons have been drawn.
The Supreme Court of Canada ruled in 2010 that federal laws on assisted human reproduction are outside Ottawa’s power to regulate under criminal law.
Although with a thin majority in Attorney General of Canada v. Attorney General of Quebec, the court ultimately sided with Quebec, which has passed extensive regulations on the matter. Those include allowing provinces to control the licensing of doctors and clinics and regulations regarding how they deal with donors and potential parents, eggs, sperm, and embryos, including whether or not they are used for research purposes like genetic therapy.
Still some reproductive technology specialists warn such advances could lead to significant physiological consequences in the meantime, particularly in cases like Pratten’s.
“While our society is becoming increasingly acclimated to the medical advances that have afforded new forms of conception with the aid of reproductive technology, medical studies are simultaneously discovering more and more ways that our physical and mental health are affected by heredity and genetic loadings,” said reproductive technology specialist Dr. Diane Ehrensaft in Pratten.
“For donor offspring with anonymous donors, to be denied access to half their genetic history can not only create medical risk but be a trigger for anxiety and depression, as the offspring suffer duly from barred access to vital medical information and from the awareness that someone is intentionally blocking them from receiving this information, a blockage that could have negative if not life threatening consequences.”