Quite a while back (nearly two years ago) I wrote about a pending Canadian lawsuit in which a young woman sought disclosure of identifying information about the man whose sperm was used to inseminate her mother. Here’s a report on an important decision in what I believe to be the same case. The case in the newer report was brought by Olivia Pratten and is set for trial the end of this month.
As I understand it, Ms. Pratten is actually seeking two different things. First, she wants access to the records relevant to her own case. The doctor says these records were destroyed over a decade ago. Needless to say, if that’s true, she won’t be able to get them. But it may not be true and the critical assertion she makes is that she in entitled to them.
Beyond that, Pratten seeks a broader order–one that would allow children conceived with third-party sperm to have access to the identifying records of those who provided sperm for insemination. (As I understand it, Canadian law currently requires that the records be maintained, but allow the provider to remain anonymous.)
My guess is that some people are going to want to jump right to the broad questions raised in this case. Maybe it is because I’m a law professor, but I feel a need to make a few little observations along the way. Bear with me or skip ahead.
Pratten’s individual claims are a bit different from the broader ones. For one thing, her case is retrospective–the man concerned provided the sperm over 28 years ago. Presumably at the time he was promised anonymity. Thus, for Pratten to win, we must decide that his reliance on that promise is less important than her need to have the information.
I’m not saying that this determines the outcome. The point I want to make is that this is a consideration that doesn’t exist of you consider changing the rules to be used in the future, which is part of what her lawsuit seeks to do. If from now on prospective sperm providers are informed that they cannot be promised anonymity then there can be no claim of reliance to consider. (I realize that there are thousands of others in the position of the sperm provider in the individual case who might be affected here, too.)
A second important difference between the individual claim and the broader one is that Pratten is an adult, clearly capable of making her own decisions. Perhaps she seeks only the same right for other’s conceived with third-party sperm as they reach adulthood. It’s a bit hard to tell. But it worth noting that children are not generally competent to assert their own rights independently. Instead, we rely on adult near them to speak for them–and those adults are the child’s legal parents. I don’t think a court could order disclosure of the information to children absent a request for it from the child’s legal parent(s). All of which is to say, I’m not quite sure what the relief sought on the broader claim would look like.
I see this case as a piece of a larger pattern. For reasons practical, philosophical and legal, I think we are approaching the end of anonymity for gamete providers, or at least the end of the era where we thought one could be guaranteed anonymity. I think this means we are obliged to consider the legal rights/obligations of gamete providers and the development of systems for maintaining and potentially releasing their identifying information.