The B.C. Supreme Court has struck down provincial legislation that protected the identity of sperm donors. The court also prohibited the future destruction of any records and ordered the province to draw up new legislation in line with the Charter of Rights.
Lawyers for Olivia Pratten had argued that the existing rules discriminated against the children of sperm donors, and the court ruled in Olivia Pratten's favour on Thursday by striking down a section of the B.C. Adoption Act.
In the decision, Justice Elaine Adair wrote that the rights of the child must be protected in sperm donation, much like they are protected in cases of adoption in B.C.
"I grant a permanent injunction, in accordance with these reasons, prohibiting the destruction, disposal, redaction or transfer out of B.C. of gamete donor records in British Columbia," she wrote.
The ruling gives the province 15 months to enact conforming changes to the B.C. Adoption Act that are in line with the Charter of Rights.
Adair found the Act was unconstitutional because it treats adopted children differently from children of sperm donors. Adopted children are provided information about their biological parents, whereas the children of donors are not.
Pratten was conceived through sperm donation. The 28-year-old Ontario journalist fought for years to learn her biological father's identity, but was eventually told the doctor legally destroyed the records in the 1990s.
"It is a total win for us. No more anonymity. Donor offspring have been recognized as having the same rights as adoptees in B.C.," said Pratten after the ruling was released.
She then decided to sue the B.C. government on behalf of other children who still have hopes of learning their parentage and to ensure donor records are preserved indefinitely and that children can have access to the records when they turn 19.
Limited effect on fertility clinics
Dr. Albert Yuzpe of Genesis Fertility Clinic said he has no issue with what Pratten has pioneered and the decision is not likely to affect work at his clinic in Surrey, B.C., because 80 per cent of his patients already chose sperm from "known identity" donors.
He also notes Canada has only one sperm bank, based in Toronto, and the majority of sperm comes from American sperm banks. At his clinic he does 600 donor sperm cycles per year, and only one or two involve Canadian donors, he said.
Yuzpe also said it is unclear if the decision would force anonymous American sperm donors to be identified.