Madam Justice Adair
Judge Elaine Adair recognized that "the desire and need of donor offspring to know ... their origins is just as powerful and real as those of adoptees" and that "serious harm can be caused by cutting off a child from his or her biological roots".
Now in B.C., donors of sperm and eggs can no longer hide their identity. Instead, those conceived by gamete donation could, as adults, learn who the donor was. The ruling on May 19, 2011 does not apply in other Canadian provinces.
In backing the adoption approach to openness, the B.C. court found that the province's Adoption Act was unconstitutional in giving the right to information about biological parents to adopted children, but not to children born of artificial insemination with donor sperm. Adult adoptees are allowed to search for their birthparents' names.
It represented a victory for journalist Olivia Pratten, who in 2008 launched a class action lawsuit on behalf of all in B.C. conceived through sperm donation. Her goal was to get fertility clinics to open their records so that donor offspring could identify their biological fathers.
What Judge Adair wrote
Judge Elaine Adair ruled that anonymous donation "is harmful to the child, and it is not in the best interests of donor offspring."
She said both adopted children and donor offspring need to know about their biological roots. "Strong and positive relationships with social parents do not satisfy or eliminate the desire and need of donor offspring to know where they came from, and their need to know their origins is just as powerful and real as those of adoptees."
As these excerpts from the Reasons for Judgment show, Judge Adair drew lessons from the adoption field in determining the best interests of donor offspring.
Providing evidence was Sandra Scarth, president of the Adoption Council of Canada:
On the general point concerning needs of adoptees to know about their background and roots, and the corresponding — and comparable — needs of donor offspring, I found the evidence of Sandra Scarth to be helpful, in addition to the evidence I have already noted.
Judge Adair cited the rule of open records ...
The Adoption Council has an official position on the openness of adoption records ... sealed adoption records perpetuate secrecy and shame within adoption ... every adopted adult has an unqualified right to access his or her original birth certificate, the court files pertaining to his or her adoption and his or her personal files held by the adoption agency, government and/or licensee.
... and quoted Ms. Scarth as saying:
It is the position of the [Adoption Council], based on its work with adopted people and the adoption community, that donor offspring have many of the same social, psychological and medical needs for background information about their genetic parents as do adopted people. The [Adoption Council] endeavours to share the significant knowledge obtained in the adoption community about these issues with the assisted human reproduction community. The [Adoption Council] endorses the policy paper of the Evan B. Donaldson Adoption Institute on this subject, titled "Old Lessons for a New World: Applying Adoption Research and Experience to Assisted Reproductive Technology".
Then the judge quoted the Evan B. Donaldson policy paper:
Adoption and assisted reproductive technology (ART) have much in common; most significantly, both processes are used to create families in which the child is not genetically related to one or both parents.
... The problematic effects of secrecy and of withholding information — on adopted persons, birthparents, and adopted families — offer insights for ART policy and practice related to the circumstances of a donor offspring's conception, disclosure of medical and other background information, and the identities of those involved.
... The child-centered focus of adoption provides a vital perspective for placing greater attention on the children conceived through ART.
... The legal and regulatory framework for adoption provides a model that ART can utilize to inform its standards and procedures.
Judge Adair concluded that adoptees and donor offspring have comparable needs:
In my view, the fact that the Adoption Council perceives this kind of connection between (on the one hand) adoptees and their needs and (on the other hand) donor offspring and their needs is strong support for the conclusion that the groups are, indeed, comparable.
The adoption experience teaches what is best for donor offspring — cutting children off from their roots is harmful:
... the Royal Commission's report, the background to the amendments to the Adoption Act and Ms. Scarth's evidence all support the conclusions that there is much to learn from the adoption experience in considering the needs, circumstances and best interests of donor offspring, that there are many points of similarity between the two groups, that donor offspring share with adoptees many of the same social, psychological and medical needs for information about biological parents, and that, even if well-intentioned, serious harm can be caused by cutting off a child from his or her biological roots.
Preserving a child's life history best serves the child:
... donor offspring have been recognized, at least since the publication of the Royal Commission's report in 1993, as a vulnerable group because of the lack or unavailability of records and information. This is another area where the adoption experience can teach valuable lessons, with a goal, in the case of donor offspring, of creating and preserving records in the best interests of the child.
As in the adoption field, legislation is needed to protect children; the private sector is inadequate to the task:
... the circumstances of donor offspring, particularly in matters affecting their physical and psychological health, are too important to leave unregulated. This would not be tolerated in the area of adoption, where there is a strong commitment to identifying and then, through legislation, facilitating measures considered to be in the best interests of children. The private sector cannot provide an adequate substitute for government protection and regulation, and practices developed by the private sector cannot be a full answer to the circumstances of donor offspring.
As in adoption, legislation should come from the provincial, not federal, government:
... as with adoption legislation, the primary legislative response needed — and needs — to come from provincial legislatures, not parliament. That is now clear from the majority's ruling in the Assisted Human Reproduction Act Reference.
The judgment:
Finally, I conclude, based on the whole of the evidence, that assisted reproduction using an anonymous gamete donor is harmful to the child, and it is not in the best interests of donor offspring.
Children need the truth
Commenting May 21 on the ruling, bioethicist Dr. Vardit Ravitsky of the Faculty of Medicine at University of Montreal emphasized that children need the truth. "By putting the well-being of children first and acknowledging the rights of donor-conceived individuals to know the identity of their donors, British Columbia is joining a respectable and growing list of jurisdictions that have banned donor anonymity in recent years. But unless they are told the truth about the circumstances of their conception by their parents, children will not be able to access information that can be crucial for their health and psychological well-being."
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