Pratten v British Columbia (Attorney General) 2012 BCCA 480 (27 November 2012) The Court of Appeal for British Columbia (Court of Appeal) recently held that the Canadian Charter of Rights and Freedoms (Charter) does not create a positive right for donor conceived individuals to know their biological origins. In this case, the plaintiff argued that by enacting legislation only for the benefit of adoptees, the legislature discriminated against adults conceived from anonymous donors. The plaintiff also argued that the Charter created a positive right for donor offspring to access information about their biological origins. The Court of Appeal rejected these claims, overturning a decision of the Supreme Court of British Columbia (Supreme Court).
The plaintiff, Olivia Pratten, was conceived using sperm from an anonymous donor. In accordance with the rules of the College of Physicians and Surgeons of British Columbia–which allow for patient records to be destroyed after six years–records relating to the insemination procedure by which Ms Pratten was conceived are no longer available. As such, Ms Pratten has only limited information about her biological father. Ms Pratten argued that this lack of information seriously compromised her physical, psychological and psychosocial health and left her at risk of inadvertent consanguinity.
Ms Pratten argued that by enacting legislation allowing only for adult adopted children to obtain information about their biological parents, the legislature impermissibly discriminated against donor offspring, contrary to section 15(1) of the Charter (equality rights). Ms Pratten also argued that the legislature’s failure to facilitate donor conceived individuals obtaining information about their biological parents violates a positive right guaranteed by section 7 of the Charter (life, liberty and security of the person).
Madam Justice Adair of the Supreme Court found that various provisions of the Adoption Act and Regulations violated section 15(1) of the Charter and declared them invalid. However Justice Adair dismissed the claim for a positive rights declaration under section 7 of the Charter. The Judge granted a permanent injunction against the destruction of records containing information about the identity and medical and/or social history of sperm donors and suspended her declaration of invalidity for 15 months.
The Attorney General of British Columbia appealed, contending that Justice Adair erred in finding a violation of section 15(1) of the Charter. Ms Pratten cross-appealed contending that the judge erred in not declaring positive rights under section 7 of the Charter. The judge’s findings that the medical and psychological health of donor offspring is seriously compromised in donor offspring; that such individuals suffer psychological and psychosocial difficulties; and that their medical and psychological needs to have access to identifying and non-identifying information about their donors are substantially the same as adoptees, were not challenged on appeal.
The Supreme Court found that the state’s failure to legislate for donor offspring discriminated against them on the basis of their “manner of conception”. However the Court of Appeal, constituted by Mr Justice Frankel, with whom Mesdames Justices Levine and Saunders concurred, held that the adoption legislation was a valid affirmative action program in accordance with section 15(2) of the Charter. The Court of Appeal agreed with the Attorney General that the legislative scheme has an ameliorative purpose that targets a disadvantaged group identified by an analogous ground and is thus saved by virtue of section 15(2) of the Charter. The plaintiff argued that distinguishing between adoptees and donor offspring did not serve an ameliorative purpose. However the Court of Appeal rejected this claim, stating at paragraph  that “[t]he purpose of the impugned provisions is to remedy the disadvantages created by the state-sanctioned dissociation of adoptees from their biological parents.” Thus the Court of Appeal held it was 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 donor offspring.
Ms Pratten also argued that section 7 of the Charter conferred a positive right “to know one’s past”. Both the Supreme Court and the court of Appeal rejected the argument that section 7 of the Charter confers positive rights to which the government is obliged to give effect. Both courts also rejected Ms Pratten’s claim that British Columbia deprived her of the right to liberty and security of the person by failing to legislate against the destruction of patient records.
In Victoria, Australia the rights of donor offspring to access information about their donors varies depending on when donations were made. People conceived from donations made prior to 1 July 1988 have no legislated right to access information about their donors. People conceived from donations made between 1 July 1988 and 31 December 1997 can access information where the donor consents. All people conceived from donations made after 1998 have unconditional access to information about their donors.
The Victorian government is currently considering whether the Victorian Assisted Reproductive Treatment Act 2008 (Vic) ought to be amended to waive the confidentiality afforded to donors who made donations prior to 1998. In accordance with the Charter of Human Rights Act 2006 (Vic) (Victorian Charter), this raises issues around donors’ rights to privacy and family life as well as the rights of donor offspring to equality and freedom from discrimination, privacy and reputation, freedom of expression, liberty and security of person and best interests’ protections.
Donor offspring in Victoria might argue that the legislature’s differential treatment on the basis of when their donations were made, as well as in comparison to adoptees, represents an impermissible interference with their rights under the Victorian Charter. Victorian donor conceived individuals who do not have access to information about their donors might also argue that the state is obliged to legislate for access to information about their donors to give effect to their rights. While the Victorian Charter requires public authorities to give proper consideration to human rights and to act compatibly with rights, such rights are not absolute and can be reasonably limited.
The decision is available at: http://canlii.ca/en/bc/bcca/doc/2012/2012bcca480/2012bcca480.html
Lauren Hodes is a lawyer in the Equality Law Program at Victoria Legal Aid