Court denies kids right to know sperm-donor identity through doctors' records

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Olivia Pratten poses for a photo outside the B.C. Supreme Court in Vancouver, Wednesday, Oct. 27, 2010. The B.C. Court of Appeal has thrown out an earlier decision that sided with Pratten, a woman who wanted to know the identity of her sperm donor father.THE CANADIAN PRESS/Jonathan Hayward

VANCOUVER - A woman who wanted to know the identity of her sperm-donor father is taking her case to Canada's top court after the B.C. Court of Appeal threw out an earlier decision that sided with her.

Olivia Pratten wanted offspring like herself to be treated the same as people who are adopted and argued that the B.C. government should change its laws accordingly.

But the appeal court ruled Tuesday there is no legal right for offspring to know their past and providing such information would amount to state intrusion into many people's lives.

"It's very disappointing," Pratten said of the appeal court ruling.

"All we were asking for is the same benefits of adopted people. They've basically said, `No, you can't have that.' And they've basically said that it's OK for the government to discriminate. It's failing to protect the health and safety of donor-conceived people, that's what this court has done. We'll be appealing it to the Supreme Court of Canada."

The appeal court concluded that contrary to Pratten's argument, it is not her constitutional right to know her biological past.

"There are many non-donor offspring who do not know their family history or the identity of their biological father because of decisions taken by others, or because of the circumstances of their conception," Justice David Frankel said in the written ruling on behalf of the three judges.

"However desirable it may be that persons have access to information about their biological origins, Ms. Pratten has not established that such access has been recognized as so `fundamental' that it is entitled to independent constitutionally protected status under the Charter," the ruling said.

In May 2011, a B.C. Supreme Court judge agreed with Pratten, giving the province 15 months to amend its Adoption Act, saying people who are deprived of their genetic backgrounds suffer psychological harm.

Judge Elaine Adair also ordered a permanent injunction against the destruction of donor records, which can be disposed of in six years, but the B.C. government appealed the ruling.

In February, a lawyer for the Attorney General's Ministry told the appeal court that adoption laws don't apply to people who were born using donated sperm or eggs if they want to learn the identity of a biological parent.

Some information collected about biological parents by adoption agencies and the government can be accessed when those children turn 19, unless the parents don't want it disclosed.

Pratten, who now lives in Toronto, was born in Nanaimo, B.C., in 1982 using sperm from an anonymous donor, and her parents knew the donor's identity would be shielded.

She spent a decade trying to learn her biological father's identity, but her parents' Vancouver fertility specialist destroyed the records in keeping with rules of the B.C. College of Physicians and Surgeons, which was also named Pratten's lawsuit.

Dr. George Korn, who retired in 2004, gave her contradictory information, first saying the donor was six feet tall and had brown eyes and later said he was 5 feet 10 inches tall and had green eyes.

Pratten, who started court proceedings in 2008, said she was told by the B.C. College of Physicians and Surgeons in 2004 that the sperm donor's records could have been shredded or incinerated and she therefore couldn't get any information about him.

"Not only me but other people have contacted them over the years," she said. "Everyone's just turned around and said it's not our problem, it's not our jurisdiction and that was one of the big issues of the case.

"I'm saying publicly that they're useless," she said of the college.

"I don't want them to protect these files because they've failed at doing it and they need to be held in Vital Statistics or somewhere else, which is why we wanted to be included in the adoption legislation because that's the legal framework to provide protection of files."

The B.C. College of Physicians and Surgeons did not return calls for an interview.