Consistency and privacy: do these legal principles mandate gamete donor anonymity?

• Author: Shields, Lisa
• Position: Canada

1. Introduction

   Canada is at a critical point in its development of assisted human reproduction law. After a full decade of debate and consultation with the public and interest groups, The Assisted Human Reproduction Act (1) or Bill C-13, may become the first comprehensive law in Canada to address the controversial area of reproductive technologies. Although most Canadian clinics have historically protected the anonymity of donors, there is currently no right of donor anonymity specifically enumerated in Canadian law. (2) However, if Bill C-13 as currently written becomes law, s. 18 will establish a legal right of anonymity for donors. (3) This will create legal rights structures that are inconsistent with some fundamental legal principles.

   The issue of donor anonymity has attracted passionate and widespread attention because it calls into question a society's attitudes on fundamental issues of privacy, personal identity, family and what it means to be human. This is evident not only in Canada, but around the world. After such focus, countries such as Sweden, Australia, New Zealand, and Japan have abolished or are in the process of abolishing anonymous gamete donor systems in favour of "identity-release" systems. (4) Identity-release systems typically allow donor offspring who have reached the age of majority to access identifying information about their donor. (5) This information is of a form that the donor offspring would likely then be able to contact their donor, if the donor offspring would like to do so. These changes have come about in response to the growing number of donor offspring who express a desire to know the identity of their genetic donors. (6)

   One of the fundamental arguments embraced by the Canadian government for protecting donor anonymity in Canadian law is the similarity of such a system to most provincial and territorial adoption laws. (7) Additionally, the government's discourse on the development of an anonymous donor system has suggested that the donors' privacy rights will be violated if their identities are made known to donor offspring. (8) These two arguments can be categorised as falling within the principles of legal consistency and privacy rights. Although the Canadian government has used these two arguments to support Bill C-13's anonymous donor system, when the two fundamental legal principles are applied correctly, they support an identity-release system. This paper analyzes the implications of the misguided application of legal principles in the argument for donor anonymity laws.

2. Looking Backward or Looking Forward?

   Laws should be consistent with one another lest the integrity of the justice system be compromised. Thus, it is important to draft legislation that embraces the same fundamental legal principles that have led to the development of the current legal system. However, a rigid approach to legislative drafting that focuses on legal consistency might preclude the ability for law to develop. As society's needs and values change, so should the laws that are informed by society. Consequently, legislators ought not to look to other legislation simply as a restriction of the parameters of new legislation. Legal consistency should not make the law static, but provide a way for legislators to incorporate the most fundamental legal principles into new legislation.

   There is a natural inclination to compare gamete donation with adoption because of the apparent similarities between the two. (9) However, there are dangers in constructing gamete donor laws to mimic adoption laws. Most provinces' adoption laws were written in a social context that is very different from the current day. The values and attitudes of society several decades ago, particularly about reproductive issues, informed the establishment of adoption laws that put a premium on secrecy and anonymity. At that time, there was little discourse about any potential ill effects of keeping a child's origins secret from him or her.

   Only a couple of decades ago, adoption was viewed in a very different light than at present. Unwed mothers were a source of shame given that pre-marital sex was taboo. Over time, it became more apparent that many adopted children in Canada wanted to know about their biological origins. At the same time, many biological parents were happy to know that the baby that they had given up for adoption had grown into a healthy, happy adult. These inclinations, both on the part of the adopted individual and the biological parents served to increase openness in adoptions to the present situation where such open adoptions are acceptable and maybe even preferred.

   Currently in Canada it is increasingly commonplace for people to seek "private adoptions" in which the biological and social parents can stipulate the terms of the adoption. Private adoptions typically take the form of open adoptions, in which identities are typically shared between the parties. (10) British Columbia enacted legislation creating an open adoption system in 1996 such that there is unqualified access to birth and adoption records by biological parents and adopted adults. (11) Newfoundland has also recently amended its adoption laws to provide for an open records system. (12)

   The trend towards openness in adoptions is indicative of society's changing beliefs about what is best for adopted children and other parties to adoption. If gamete donor law models itself on the typically outdated adoption laws that are in place in most Canadian jurisdictions, it will be repeating the mistakes of history rather than learning from them.

   The changing face of adoption law and society's attitude toward adoption raise the important issue of the appropriate role of law in social change. Historically, adoption laws did not provide for any means of information release to adopted people. Without the legal change to require the maintenance of birth and adoption records, we would not have been able to observe the consequences of the release of this information to adopted adults. Fortunately, awareness of the benefits of openness has expanded to encompass the legitimacy of an adopted adult's desire to know his or her origins. Adoption itself has not collapsed because of openness. In fact, it has probably survived in large part because of the legal amendments permitting openness.

   Law may be a reflection of society but it also proscribes limits that necessarily shape society's attitudes and beliefs. People embraced openness in adoptions and pushed for appropriate legal accommodations for their wishes. Nonetheless, the law's permission of openness in adoptions necessarily encouraged society's...