No right to "know one's past": the BCCA in Pratten v British Columbia (Attorney General).

• Author: Rathwell, Nikita
• Position: Reprint

In a decision released on November 27, 2012, the British Columbia Court of Appeal (BCCA) in Pratten v British Columbia, 2012 BCCA480, reversed the British Columbia Supreme Court's (BCSC) decision that provisions of the provincial Adoption Act are unconstitutional as a result of their failure to take into account the rights of people conceived using sperm from an anonymous donor ("donor offspring").

The challenge was brought by Olivia Pratten, who was conceived in 1982 using sperm from an anonymous donor. As per the rules of the College of Physicians and Surgeons of B.C., which allows records to be destroyed six years after the last entry, all records relating to the insemination procedure by which Ms. Pratten was conceived were destroyed.

Ms. Pratten argued that the Adoption Act, which contains mechanisms enabling adoptees to find their birth parents, violates section 15 of the Charter because it benefits only adoptees and not donor offspring. Additionally, Ms. Pratten claimed that the Legislature's failure to enact legislation to allow donor offspring to access biological information violates a "free-standing" positive right to "know one's past", as guaranteed by section 7 of the Charter.

Ms. Pratten argued that the Adoption Act, which contains mechanisms enabling adoptees to find their birth parents, violates section 15 of the Charter because it benefits only adoptees and not donor offspring.

At trial, the BCSC found that various provisions of the Adoption Act and the Adoption Regulation violated s. 15 and declared them invalid. This declaration of invalidity was suspended for 15 months. The trial judge also granted a permanent injunction against the destruction of records containing information about the identity of sperm donors. Ms. Pratten's s. 7 claim was dismissed. More detail about the BCSC decision can be found here.

The BC Attorney General appealed the s. 15 decision and Ms. Pratten cross-appealed the s. 7 decision.

The trial judge made some important findings of fact in her decision (found at paragraph 111) which were not challenged on appeal. Among them include the fact that donor offspring feel that their health can and may be seriously compromised by lack of information about their donor. Based on expert medical evidence, the trial judge found that these fears are justified.

... donor offspring feel that their health can and may be seriously compromised by lack of information about their donor.

Additionally, she found that...