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Top court won't hear case into rights of children born through sperm donation

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VANCOUVER - Olivia Pratten had long ago come to terms with the reality that she would likely never know the identity of her biological father.

Pratten was born in Nanaimo, B.C., in 1982 after her parents, who couldn't conceive on their own, turned to sperm donation.

When, at 19, she asked the doctor who oversaw the procedure for more information about the donor, he refused. When she pressed the issue in court, she was told the records related to her case had been destroyed.

With the Supreme Court of Canada announcing Thursday it will not hear her case, Pratten says more children like her will have no way to learn the identities of the sperm donors who helped bring them into the world.

"My files were destroyed, and that was legally allowed — the fact that that's fine is not OK, it's a step in the wrong direction," Pratten, now 31 and living in Toronto, said in an interview Thursday.

"I never wanted anyone to be in my situation again, and unfortunately, as a result of this ruling, there will be more people in my situation."

Pratten filed a legal challenge five years ago, arguing her charter rights were violated because the B.C. government had nothing in place to preserve records from sperm donations or make them available to the children conceived through such procedures.

She argued children conceived through sperm donation should have the same rights to access information about their biological fathers as children who are adopted. Her lawyer said such children have a right to know their medical history and prevent themselves from unknowingly engaging in a sexual relationship with a half-sibling.

The B.C. Supreme Court agreed with her, concluding anonymous sperm donation "is harmful to the child" and striking down sections of the province's Adoption Act as unconstitutional. The judge in the case also ordered a permanent injunction against the destruction of donor records.

But the victory was short-lived.

Last fall, the B.C. Court of Appeal overturned the lower court's decision, ruling there is no constitutional right to know the identity of one's parents.

Pratten asked the Supreme Court of Canada to intervene, but on Thursday, the high court said it would not hear the case. As usual, the court did not provide its reasons for refusing to hear the appeal.

Pratten said she never expected the legal challenge to provide her answers about her own past, since she knew the records had been destroyed.

Rather, she wanted to ensure the law would catch up to a world in which reproductive procedures such as sperm donation — and the children they create — are becoming more common.

"This is an area that has no legislation on it, and there's more people who are conceived this way," she said.

"Women are delaying their fertility, more people are using egg donors and surrogates. More and more people are like me. The issue is not going away."

Lawyers for the provincial government argued in court that practices around sperm donation have changed significantly since Pratten was born.

Today, a woman seeking donor insemination in B.C. can obtain detailed social and medical information on the donor, even if the donation is anonymous, government lawyers noted.

Adopted children born in B.C. have been able to learn the identity of their biological parents since 1996, when the province changed the law to allow children to access such information.

However, the law allows parents who gave up children for adoption before the 1996 changes took effect to block the child's ability to learn their identity.

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