May 30, 2011
Canadian Court Establishes Legal Rights for Donor Offspring
A noteworthy development in Canada regarding the rights of offspring conceived using gametes (eggs or sperm) from anonymous donors. The Supreme Court of British Columbia has accepted a human rights/equal protection argument regarding the administration of the province's adoption law which did not offer the same legal protections to donor offspring as were provided to adopted offspring. A growing movement either against such anonymous donations or against the attendant secrecy has emerged in recent years, with opposition focusing on the inability of the offspring to learn about their familial (and genetic) heritage, as well as concerns regarding the occurrence of widespread sibling clusters. The situation in which such donor offspring find themselves increasingly differs from those who were adopted in the traditional sense. The trend toward open adoption has encompassed traditional adoptees, but the trend toward openness has not extended to those born from anonymous egg or sperm donors. Of course, the lack of lineage information has relevance in, for example, understanding that the prevalence of a clinical condition is higher is a particular ethnic group; individuals knowing thier own history can be motivated to undertake genetic testing to define their particular level of risk (e.g., Tay-Sachs disease risk among Ashkenazi Jews is widely known, less well-known is the increased risk for those of Irish and French-Canadian descent). In Pratten v. British Columbia, the court accepted the argument that the province's adoption law discriminated against those conceived with the use of anonymous donors because they did not have the same rights to learn the identity of their parent(s), and also because the records pertaining to their biological origins were not required to be preserved, as was the case for traditional adopted offspring; the law violated Section 15 of the Canadian Charter of Rights and Freedoms. This is the first court in North America to rule in favor of donor offspring rights; the case offers a strategy for similar challenges to adoption statutes using the anti-discrimination rationale.
Labels: Reproductive Technologies