Olivia Pratten (Photo: National Post)
The British Columbia Supreme Court struck down provisions of the
Adoption Act and Adoption Regulations on Thursday. They argued that the
legislation denies offspring of sperm and egg donors (gamete donors)
their Charter rights, which ought to be equal to those of adopted
children with regard to knowledge of the identity and medical history of
their biological parents.
The court order will only go into effect in 15 months’ time to allow
the B.C. legislature leisure to enact appropriate legislation. But
effective immediately gamete donor records are prohibited from being
destroyed or transferred out of B.C. Thus, like closed adoptions,
anonymous gamete donation will no longer be permitted in that province.
The driving force behind the suit was Olivia Pratten, a young woman
conceived by her biological mother and an anonymous sperm donor, who has
been seeking knowledge about the hidden half of her bio-inheritance for
years. Pratten’s lawyer said: “This case represents a monumental
victory for our client, Olivia Pratten, and all the donor offspring she
represents who have for too long been disadvantaged by their exclusion
from the legislative landscape which has promoted and perpetuated
prejudice and stereotyping and caused them grave harm.”
The ruling makes both social and ethical sense. While Ms Pratten did
not grow up without a fatherly presence in her home – the sperm donation
compensated for her mother’s husband’s inability to father a child –
her angst, and those of countless other children over their provenance,
demonstrate that a child’s sense of identity cannot be constructed on
the basis of role models or loving parental substitutes. A child wants
to know and has the right to know as much as possible about their
genetic roots at least. This is a principle well understood with regard
to adopted children, and there is no logical reason why it should not
apply to donor children. That’s the ethical part.
As for the social reason why this is a good ruling: Adoption is a
well-regulated non-profit institution, its raison d’etre to find a home
and family for an existing child, whose rights are well protected by
social service people trained to pair a child with optimal parents. An
adopted child at least knows that he or she came into the world
naturally, and that an unlucky fate left him or her parentless. Donor
children know that their conception was the result of a commercial
negotiation, that half their bio-inheritance was treated as a commodity.
This is socially unnatural.
Unlike adoption, sperm and egg donation has been an unregulated
marketplace. Its focus is the desire and, some would say, the “right” of
parents to have a child, whatever it takes. The conceived child’s
interest is forgotten.
But there is no evidence to suggest that intentional
fatherlessness/motherlessness of this kind is good for children. There
is plenty to suggest that a commercial free-for-all in sperm and eggs
creates existential torment, an “invisible loss” in these children
(there are about 16,000 in Canada) that cannot be smoothed away by the
“good narrative” of how wanted the child was.
This ruling is bound to dry up the sperm market, and that will create
a great deal of anguish amongst women who consider fathers unimportant
in a child’s life, or believe that it is somehow their right to create a
child by any means, but not a child’s right to have, or at least know
their missing parent. Too bad for them.