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Competing rights remain an issue in sperm donor cases

Sara Cohen
A trio of cases dealing with sperm donation and/or the children conceived from its use have highlighted the inherent tension between the rights of donors, intended parents and donor-conceived children, Toronto fertility lawyer Sara Cohen writes in Lawyers Weekly.  Read Lawyers Weekly

"As the courts could not rely on precedent or legislation to decide the cases (as no relevant decisions or legislation existed) they were required to provide at least a part answer to significant policy questions, such as: is a donor a parent? Are gametes property? Do donor-conceived people have a right to know their origins? When do the best interests of children conceived through donor gametes outweigh the rights of the donors or the users of the donor gametes?," Cohen writes in the article.

Pratten v. British Columbia (Attorney General) [2011] B.C.J. No. 931 (overturned, [2012] B.C.J. No. 2460), is likely the most well-known of the three decisions, she writes.

"Olivia Pratten is a young woman conceived in British Columbia during the early 1980s through the use of anonymously donated sperm," the article says. "She alleges that she, along with other donor-conceived people, suffers significant anxieties and other harms as a result of, inter alia, B.C.’s failure to ensure records are kept about the sperm donor, and to provide not only health information but identifying information about the donor to her."

Pratten alleges this failure amounts to discrimination as compared with adult adoptees, who may access records about birth parents, including identifying information, upon reaching the age of majority, and constitutes a breach of her s. 15 and 7 rights under the Charter of Rights and Freedoms, the article says.

Together with J.C.M. v. A.N. A.[2012] B.C.J. No. 802, out of the B.C. Supreme Court, and Deblois v. Lavigne [2012] O.J. No. 3671 out of Ontario, the decisions depict a tension between the best interests of children conceived through the use of donor gametes versus the rights of donors and parents, writes Cohen.

"The three cases also depict that no rhyme or reason yet exists as to when a court will prioritize the best interests of a child, or a future child, over the rights and interests of donors and parents."

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