Donor offspring rights and estate law
JEREMY HAINSWORTH VANCOUVER
A recent B.C. decision giving children
of sperm donors the same rights as adopted
children to biological parent information
is presenting a unique set of challenges for
lawyers working in the areas of family law
and wills and estates.
The situation arises in the wake of the
May 19 British Columbia Supreme Court
ruling in Pratten v. British Columbia,
(Attorney General), [2011] B.C.J. No. 931,
where a B.C.-born woman won her battle
to get children of gamete donors the same
rights as adopted children to learn about
their biological parents. The landmark
case struck down B.C.’s Adoption Act as
unconstitutional.
“Assisted reproduction using an
anonymous gamete donor is harmful to
the child, and it is not in the best interests
of donor offspring,” Justice Elaine Adair
ruled.
“In my view, the interests affected in
this case are such that they merit constitutional protection,” Adair said.
Olivia Pratten was conceived in 1981
using sperm from an anonymous donor.
Like many donor offspring, Adair heard,
Pratten knew almost nothing about the
man who provided one-half of her genetic
makeup and had long felt that a part of her
identity was missing. The court heard she
risks inadvertently forming a romantic
relationship with a half-sibling and worries her health, and the health of her
future children, could be comprised by the
lack of information.
Pratten argued the situation was contrary to the Charter under s. 15 as discriminatory and a s. 7 violation in that
donor offspring rights to liberty and security are violated by the failure to enact legislation to protect fundamental aspects of
their personal autonomy and health.
The doctor who performed the insemination had passed the point in time where
by law he was required to maintain documents. Pratten maintained the B.C. government permitted their destruction,
thereby depriving her of basic personal
information that is necessary for her
physical and psychological health.
The B.C. attorney general’s lawyers
argued before Adair there was no constitutional right to know one’s origins and gen-
spring of donors to make claims,” she said.
“It’s such a unique situation. There could
be 25 kids born from the same donation.”
And, she said, if a provincial registry is
set up for gamete donor identification
information, it could be a part of the opening of that door.
Asked if Pratten could change the one
set of parents situation, Cameron sighed.
“I don’t have an answer to that question,”
she said.
“It’s such a unique
situation. There could
be 25 kids born from
the same donation.
JEREMY BRUNEEL FOR THE LAWYERS WEEKLY
etic heritage, whereas there is a constitu-tionally-protected right to privacy. Adair
disagreed. And with that comes the potential for donor-borne children to have information about biological parents.
However, the decision has left practis-
ing lawyers and academics scratching their
heads as to what it means for those who
might leave their estates to their “issue.”
Vancouver-based Fasken Martineau
wills and estates lawyer Helen Low said
Pratten “doesn’t go into testamentary
rights.” She said a child can only have
claims against one set of parents. Pratten
has no effect on that, she said.
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