Our Assisted Human Reproductive Technology Law Department is currently handling a dispute over possession of frozen embryos and analyzing a recent assisted reproduction sperm donor case. The BC Court of Appeal has recently released its findings in Pratten v. British Columbia (Attorney General), 2012 BCCA 480, an important decision concerning the rights of children conceived via “anonymous” sperm and egg donors to know and gather medical, biological and other identifying information about the donor. This case, and the resulting pronouncement, engages such fundamental Constitutional rights associated with the Canadian Charter of Rights and Freedoms (the “Charter”) that one can assume that a further appeal to the Supreme Court of Canada is imminent.
If you have a Vancouver Assisted Reproductive Technology (ART) dispute, contact our highly rated lawyers across BC and at our Vancouver office.
According to the current legislation, under certain circumstances, adults who have been adopted, (“adoptees”) are entitled to request medical, biological, social and other identifying information about their biological family from the Provincial Director of Adoptions or licensed adoption agency involved in their particular circumstances, (collectively the “authority”). The same qualified right to obtain information is not available adults conceived using sperm [or presumably eggs] from an anonymous donor (“donor offspring”).
In this case, the Plaintiff, Ms. Olivia Pratten, was conceived using sperm from an anonymous donor, making her a donor offspring and limiting her right to obtain information about her biological father. The doctor who performed the insemination procedure no longer had any records relating to it, as those records were destroyed in a manner that complied with the rules of the College of Physicians and Surgeons of British Columbia. Those rules provide that a doctor is not obliged to keep records for a patient for more than six years from the last entry in them. The doctor was able to tell Ms. Pratten only that the donor was a Caucasian medical student, who had a stocky build, brown hair, blue eyes, and type “A” blood.
Ms. Pratten claims that because the current legislation requires the maintenance of information and records and access to that information for adoptees but not for donor offspring it is discriminatory on its face, and thus violates the provisions of the Charter that ensures “Equality Rights” (section 15) as well as “Legal Rights” (section 7).
Section 7 of the Charter states that:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Section 15 of the Charter states that:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
15. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The BC trial Court agreed with Ms. Pratten and, in finding the legislation discriminatory according to the provisions of Section 15(1) of Charter, and acting in accordance with s. 52(1) of the Constitution Act, 1982, declared those provisions to be of no force or effect. The trial judge also ordered an injunction to prohibit the destruction, disposal, redaction, or transfer out of British Columbia of records containing information regarding artificial insemination procedures.
The Attorney General appealed this decision and the BC Court of Appeals reversed – finding instead that the legislation fit under the provisions of section 15 (2), (“law… that has as its object the amelioration of conditions of disadvantaged individuals…”) and thus was saved from being discriminatory according to section 15 (1).
The BC Court of Appeals made the observation that the Adoption Act relates specifically to “adoption” and that, in layman’s terms, an adoption is really about the change in the legal status of the relationship between an existing child and an adoptive parent. It further noted that the purpose of the Adoption Act is to “…provide for new and permanent family ties through adoption…”, a purpose that “has as its object the amelioration of conditions of disadvantaged individuals…”, thus meeting the test for section 15 (2).
The BC Court of Appeals determined that, because there was never any legal change in the status of the child conceived by artificial insemination, (in other words, the child comes into the world as the legal child of both parents, notwithstanding the fact that one of those parents is not the “biological” parent), the Adoption Act simply does not apply to donor offspring, and therefore there is no discrimination.
Specifically, the BC Court of Appeals noted as follows:
[40] Ms. Pratten says that the distinction between adoptees and donor offspring does not serve the purpose of the program. Indeed, she says that the distinction undermines that purpose, which she identifies (and the trial judge accepted) as one designed to remedy harm caused to adoptees from alienation “by whatever means” from a biological parent (see para. 230 of the trial judgment). With respect, I do not see that description as accurate.
[41] The Legislature has made a decision to recognize and regulate adoption to provide adoptees with new and permanent family ties. That process involves changing the legal status of an adoptee. A consequence of that change is that adoptees are alienated from their biological origins and face barriers in accessing information about their origins. The purpose of impugned provisions is to reduce those barriers while maintaining the essentially socially beneficial stance of the legislation. Given that purpose, it cannot be said that excluding persons whose legal status has never changed goes “further than is justified by the object of the ameliorative program”.
[42] …it is open to the Legislature to provide adoptees with the means of accessing information about their biological origins without being obligated to provide comparable benefits to other persons seeking such information. Apt in this regard is the following statement from Cunningham (at para. 41):
Section 15(2) affirms that governments may not be able to help all members of a disadvantaged group at the same time, and should be permitted to set priorities. If governments are obliged to benefit all disadvantaged people (or all subsets of disadvantaged people) equally, they may be precluded from using targeted programs to achieve specific goals relating to specific groups. The cost of identical treatment for all would be loss of real opportunities to lessen disadvantage and prejudice.
In its decision, the Court of Appeals also dismissed the application of the United Nations Convention on the Rights of the Child in these circumstances. It noted that:
[56] Ms. Pratten also relies on the United Nations Convention on the Rights of the Child, November 20, 1989, 1577 U.N.T.S. 3 [C.R.C.], which Canada has ratified. Article 8 of the C.R.C. reads:
1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.
[57] I do not read this provision as imposing on States Parties an obligation to provide mechanisms to enable donor offspring to obtain the personal information of third parties who are not their legal parents. Parenthetically, I note that British Columbia, which constitutionally has legislative jurisdiction over adoption, is not a party to the C.R.C.
[59] That neither Art. 8 nor any other provisions of the C.R.C. is viewed internationally as supporting the right “to know one’s past” is further evinced by the observations of the United Nations Committee on Human Rights of the Child. That Committee is an independent body that monitors the implementation of the C.R.C. by States Parties. In its “Concluding observations” issued on October 9, 2002, in response to a report submitted by the United Kingdom, the Committee stated (U.N. Document CRC/C/15/Add.188):
3. Civil rights and freedoms
Name and nationality and preservation of identity
31. While noting the recent Adoption and Children Bill (2002), the Committee is concerned that children born out of wedlock, adopted children, or children born in the context of a medically assisted fertilization do not have the right to know the identity of their biological parents.
32. In light of articles 3 and 7 of the Convention, the Committee recommends that the State party take all necessary measures to allow all children, irrespective of the circumstances of their birth, and adopted children to obtain information on the identity of their parents, to the extent possible.
[Emphasis in original.]
[60] The articles of the C.R.C. referred to by the Committee read as follows:
Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
…
Article 7
1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.
[61] Two things are noteworthy about the Committee’s observations. The first is that no mention is made of Art. 8. The second is that the language of the recommendation does not reflect the view that access to information regarding biological origin is guaranteed by the Convention. In addition, in Marchand (Ont. S.C.J.) Madam Justice Frank opined that the provisions of the C.R.C. do not support the proposition that the right to “liberty” in s. 7 of the Charter includes “a right to unfettered access to the identifying personal information of third parties who are not the legal parents of the child”: para. 115.
The decision of the BC Court of Appeals seems to put considerable weight on the fact there is not, technically, a change in the legal status of the child that results from the process of artificial insemination, [or presumably via egg donation]. However, in the opinion of this author, this distinction seems to be at direct odds with the observations of the United Nations Committee on Human Rights of the Child that “State part[ies] take all necessary measures to allow all children, irrespective of the circumstances of their birth, and adopted children to obtain information on the identity of their parents, to the extent possible.” For that reason, this author believes that this decision may still be subject to review by the Supreme Court of Canada and, should that happen, we will be sure to provide an update.
It is also worth noting that the trial judge found the following facts to be true, and none of these were refuted by the decision of the BC Court of Appeals:
[17] After a review and discussion of the evidence, the trial judge summarized her findings and conclusions in para. 111 of her reasons. Those findings and conclusions have not been challenged on appeal. They are as follows:
(a) donor offspring fear that their health can be compromised, and may be seriously compromised, by the lack of information about their donor. Based in particular on the evidence from Dr. Lauzon, these fears are justified. Even with the availability of genetic testing, a good old-fashioned family history is more predictive, and genetic testing is best interpreted in the context of a family history;
(b) because of a lack of information, donor offspring can face delayed medical treatment, and an inability to have conditions that are inherited or genetic diagnosed and treated. On the other hand, with information, donor offspring (for example, Barry Stevens) can and do modify their own behaviour;
(c) it is important, psychologically and medically, for donor offspring to have the ability to know identifying and non-identifying information about their donor, and their psychological and medical needs in that respect are substantially the same as adoptees;
(d) for donor offspring, having information – both identifying and non-identifying – matters deeply, both to complete their personal identities and to alleviate the stress, anxiety and frustration caused by not knowing. Donor offspring demonstrate a strong commitment to searching for information about the other half of their genetic make-up;
(e) donor offspring experience sadness, frustration, depression and anxiety – in other words, they suffer psychological and psychosocial difficulties – when they are unable to obtain information. They feel the effects both for themselves and, when they become parents, for their own children;
(f) donor offspring commonly, and legitimately, fear inadvertent consanguinity. Without further biological testing, many do not have the information required to determine if another individual is a biological half-sibling;
(g) the secrecy that often surrounds the process of conception, even when done with the best of intentions, can have devastating effects on donor offspring when the truth is revealed. Moreover, knowing the truth (that the other biological parent was a donor), but having no means to discover what the truth means for one’s life, can be a significant source of anxiety, depression and frustration for donor offspring;
(h) while recognizing that parents have an important and legitimate interest in deciding what their child will know and when she or he will know it, anonymity and secrecy tips the balance heavily in favour of donors and parents, and away from the best interests of donor offspring; and
(i) donor offspring and adoptees experience similar struggles, and a similar sense of loss and incompleteness. However, donor offspring do not have the benefit of the kind of positive institutions and legislative support provided to and for adoptees in B.C.
Given the complexity of Adoption and the disclosure and privacy rights of both parents and children, both in terms of adoption and sperm and egg donation, we strongly recommend that you seek the advice of a lawyer with experience in these areas. Destruction or Preservation of IVF frozen embryos and control over any decision to use them for in vitro fertilization in the future is expected to be a huge issue in divorce and separation cases moving forward. The lawyers at MacLean Family Law are available to answer your questions and provide advice for whatever your particular situation may be. We urge you to contact us now for an initial consultation for this or any other type of family law issue.
