Canada: Sperm Donors Beware: Can You Bank On Your Anonymity?

Last Updated: February 21 2013
Article by Farah Malik

The Court of Appeal for British Columbia has recently held that the offspring of anonymous sperm donors ("donor offspring") have no constitutionally-protected right to know the identities of their biological fathers. This British Columbia case - Pratten v. British Columbia (Attorney General), 2012 BCCA 480 - is not binding in Ontario, but it should give Ontario sperm donors pause. The plaintiff, Olivia Pratten, has expressed her desire to appeal this decision to the Supreme Court of Canada. If leave is granted, the Supreme Court's decision on the merits may have far-reaching estates planning ramifications for sperm donors here in Ontario.

Background: The Donor Offspring

In 1982, Ms. Pratten was conceived using sperm from an anonymous donor. Wishing to know more about her biological origins and identity, Ms. Pratten launched an action in the Supreme Court of British Columbia seeking declaratory and other relief. In particular, she claimed that when British Columbia enacted the Adoption Act for the benefit of adoptees only, it contravened s. 15 (equality) under the Canadian Charter of Rights and Freedoms by impermissibly discriminating against donor offspring. She also challenged British Columbia's failure to enact legislation to assist donor offspring in obtaining information about their biological parents. She sought a declaration of positive rights in this regard under s. 7 of the Charter (the right to life, liberty and security of the person).

Ms. Pratten, along with other donor offspring, filed affidavit evidence describing their personal experiences, fears and concerns about their limited knowledge of their biological origins. These concerns included inadvertent consanguinity; compromised health on account of incomplete family and medical histories; and struggles with feelings of loss and incompleteness.

Citing the Supreme Court of Canada's decision in R v. Kapp, [2008] 2 S.C.R. 483, the British Columbia Court of Appeal ultimately found that the impugned provisions of British Columbia's Adoption Act and its regulations qualify as an ameliorative program within the meaning of s. 15(2) of the Charter. The Pratten court found that, historically, if not currently, adoptees have been subject to negative social characterization. It was open to the British Columbia legislature to provide adoptees with the means to access information about their biological origins without any obligation to extend the same benefits to others seeking the same information.

The Pratten court also rejected the argument that s. 7 of the Charter encompasses a free-standing right "to know one's past." In drawing this conclusion, the Pratten court cited the Ontario Court of Appeal's decision in Marchand v. Ontario, 2007 ONCA 787, leave to appeal refused [2008] 1 S.C.R. ix, whereby it was held that an adoptee had no constitutionally protected right to know the identity of her biological father.

What Does This Mean for Ontario Donors?

Ontario's equivalent legislation is a combination of the Vital Statistics Act ("VSA") and the Child and Family Services Act ("CFSA"). By virtue of amendments made in 2007, the VSA permits adopted persons over the age of 18 to obtain uncertified copies of their birth certificates and adoption orders, subject to certain exceptions. For example, s. 48.4(3) of the VSA permits a birth parent to file a "no contact" notice. If such a notice is filed, an adopted person may still access uncertified copies of his or her birth certificate and adoption order so long as he or she gives a written undertaking promising not to contact the birth parent, either directly or indirectly. Also, where an adopted person was adopted prior to September 1, 2008, s. 48.1(5) of the VSA permits a birth parent to file a disclosure veto to prohibit disclosure of a birth certificate and adoption order. Section 153.6 of the CFSA also permits the formation of written "openness agreements" as between adoptive parents and birth parents (among others) to foster relationships between birth parents and an adopted child. These are just a few of the many analogous provisions challenged by Ms. Pratten in British Columbia's courts.

Potential Implications Regarding Estates

The Pratten case is an interesting constitutional case. Should it make its way to the Supreme Court of Canada, it has the potential to change not only the privacy and confidentiality interests of altruistic and anonymous sperm donors, but also the way in which they should go about planning their estates. If donor offspring succeed in their court challenge to know more about their biological fathers, this may lead to claims against their fathers as estate beneficiaries; dependant support claims under the Succession Law Reform Act; and even dependant claims for tort damages under the Family Law Act. These estates issues may be of particular concern to sperm donors who are biological fathers of potentially hundreds of donor offspring in North America and elsewhere.

It remains to be seen whether the Supreme Court of Canada will entertain this case. In the meantime, sperm donors should seek prompt estate planning advice if they have not done so already. Even if the Supreme Court denies leave in Pratten, the rapid exchange of information via the internet, blogging, and various other social media outlets carries a serious risk that sperm donors may not be so anonymous in the near future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
7 Dec 2017, Webinar, Toronto, Canada

FEX Members Jeff Noble, BDO, and Caroline Abela, WeirFoulds LLP, invite you to a complimentary webinar series titled: All About Shareholders.

11 Nov 2018, Seminar, Toronto, Canada

WeirFoulds Partner Glenn Ackerley will Chair the RICS & CIQS 5th Annual Construction & Project Management Seminar.

28 Nov 2018, Seminar, Toronto, Canada

We invite you to join us for our fall seminar where we will discuss topics that have put employment law front and centre!

 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions