Post-Pratten Proposal

Sara Cohen suggests that legislative changes can effectively increase the availability and use of known or open I.D. gamete donation in Canada without imposing a ban on anonymous sperm donation.

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Ms. Pratten is a Canadian woman conceived in the early 1980s through the use of anonymously donated sperm.  She sued the Province of British Columbia (and others) for discriminating against donor-conceived adults, as compared with adult adoptees, by failing to take the necessary steps to ensure that identifying personal and medical information about sperm donors would be available to donor-conceived adults. 

Ms. Pratten alleged that donor-conceived people suffered from various traumas as a result of lack of access to such information. This allegation was accepted as proven by the lower court, but this court decision was overturned by the B.C. Court of Appeal. Thereafter, Ms Pratten sought leave to appeal to the Supreme Court of Canada.  For more information about these decisions, see here.

The fertility community in Canada – including parents, donor-conceived people, clinics, sperm banks, doctors, and lawyers – waited anxiously for the Supreme Court of Canada decision.  Although the case was originally brought in B.C. it was widely believed that, if successful, the practical result would be a national ban on the use of anonymously donated sperm (and eggs).  After a long and dramatic battle through the court system, Olivia Pratten’s case against the Province of British Columbia (and others) came to an end when the Supreme Court of Canada denied Ms.  Pratten’s application for leave to appeal, see here.

AnonymousSperm used for reproductive purposes can be from known donors, open-i.d. donors, or anonymous donors. Currently, and to the best of my knowledge, about 40% of the donor sperm used in Canada that is not from known donors is from anonymous donors. The other 60% is from open-i.d. donors where, upon reaching the age of majority, the donor-conceived adults will have access to identifying information about their donor through the sperm bank. The information available, however, will vary from sperm bank to sperm bank.

Over the past decade, there has been a definite increase in Canadian parents’ preference for known or open-i.d. donors as compared to anonymous donors.  However, this preference isn’t necessarily true for everyone, and isn’t necessarily true of parents from every community.  For example, fascinating research about the British South Asian community seems to suggest that this community would struggle with the idea of known gamete donation (and this may be extended to include open-i.d. donation).

The practice of sperm donation raises a number of challenging questions: Is it acceptable that parents decide what is in the best interests of their child when choosing between known, open-i.d., or anonymous donation, taking into account many different factors, including the culture in which the child will be nurtured?

Is it realistic to put a further impediment in the way of Canadians looking to build their families through the use of donor gametes, by banning anonymous donation, when the availability of domestic donor gametes is already so limited, especially from certain ethnicities? For the most part, sperm used in Canada is imported from the US and Europe.  There is only one national Canadian sperm bank, Repromed. It offers open-i.d. donor sperm, but currently most of its donor sperm is anonymous.

Is it enough of a response to the concerns raised by adults conceived using anonymous sperm that through education and research, far more Canadian parents are choosing known or open-i.d. donors instead of anonymous donors?

In my opinion, the best way to encourage known and open-i.d. gamete donation across Canada is not to impose a ban on anonymity (which isn’t legally sound as per the B.C. Court of Appeal’s decision), but for each province to draft legislation that clearly sets out the parental rights and obligations of sperm donors, egg donors, and parents, as well as the rights of donor-conceived children.  If parents were less concerned that donors may have parental or other rights to donor-conceived children, they very likely would be less concerned about the issue of anonymity.  Similarly, if domestic donors were confident that they would not be considered a parent at law and so would not be required to provide child support or fulfill other parental obligations toward donor-conceived children, they may be much more willing to donate on a known or open-i.d. basis.

Sara R. Cohen LLB is a fertility and surrogacy lawyer in Toronto, Canada.

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