Canadian Lawsuit on Donor ID to Proceed

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.

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24 responses to “Canadian Lawsuit on Donor ID to Proceed

  1. The right to know the identity of your biological parents is one issue but its not nearly as important as the right to know that you are not related to your legal parents. The emerging issue for me is misrepresentation of kinship where none exists. People who ARE maternally and paternally related to a child do not have the right to conceal that fact – the federal parent locator service will hunt them down and order genetic tests to establish paternity (rarely) maternity. People who AREN’T maternally and paternally related to a child should not have the right to conceal that fact either.

    Knowing who you are not related to may be a more important right than knowing who you are related to. What this girl is fighting for will be great for those kids who know that their father’s were anonymous sperm providers – but it won’t do a damn thing to help the thousands of people who have no idea they’ve been lied to all their lives. That is the larger issue.

    Parents should not be allowed to misrepresent the facts to their children because the child is an independent being, they will grow up and be separate from the parent. While the child is a minor, the parent could choose to lie, but there should be no corroborating documentation from the government in support of that lie.

    ID disclosure is great but it will help only a tiny percentage know the truth about who their relatives are. So I think the real fight is to stop the lying at the source – we can’t trust parents to make decisions on this issue.

    • I think it is an interesting distinction that you draw–one that I haven’t really thought about. It is, as you say, one thing to consider whether a person needs to know that they are not genetically connected to their legal parents and another thing to say that they have a right to know the identity of the people they are genetically connected to. Of course, you don’t get to the second issue until you get by the first, and I think this is part of your point. But one could also say that the second (the right to know who you are genetically connected to) necesssarily includes the first (the right to know who you are not genetically connected to. I need to give this some thought.

  2. Marilyn you are suggesting a level of government interference that is truly horrifying.
    Parents shouldn’t do a lot of things. That is different from saying they shouldn’t be ALLOWED to.

  3. Julie what is the general status of a contract which may have been legal at the time it was made, but later legislation makes it illegal? It was my impression that the law at the time of the contract is binding and not the later law. Is that correct? Or does it vary from circumstance to circumstance?

    This assumes, of course, that an actual anonymity contract existed between the doctor and the donor, which may not be the case. If there was no formal agreement, than the donor has no rights to anonymity at all.

    But what about the doctor? By what grounds could he be compelled to disclose?

    • I’m not an expert on contracts, but I suspect I could answer “it varies.” This is perhaps slightly different. I assume you’re thinking about the man who provided the sperm–at the time he did so he was told he would be anonymous and, we can assume, relied on that promise? It seems to me this might be akin to the situation when children were placed for adoption and their birth mothers (or parents) were told that the records would remain sealed. Many years later some states (Oregon is one, I think) decided to unseal those records.

      Which is to say that I think that while the man (or men in that situation) might object, you could change the law and make the information available, assuming it is still stored somewhere.

      There is a somewhat similar case where an individual is seeking to compel disclosure in Massachusetts. Not much has happened in a while. I think it is back there in the blog somewhere.

  4. so the state should confirm its presumption of paternity before naming a man as father – for some but not all children? It use to be that the state’s presumption was equally unconfirmed for every child born – that is no longer the case and there is now a disparity between the accuracy of records for children whose fathers were married or admitted paternity with those that did’nt.

    People whose father’s did not voluntarily admit paternity will be able to look at their birth records with absolute confidence that the man named as father is their father because the state confirmed its presumption before certifying the record for those cases. People with unmarried fathers that volunteered paternity or people with married fathers are not given the same level of service – the state does not confirm its presumption in those cases and so its possible that the wrong man was named as father on their certificates, but they’ll never know. Its ironic that 30 years ago people who would have been treated as illegitimate bastards with no fathers named on their birth records.are now the only people who’ll know for certain if their father’s are paternally related to them.

    Its one thing for the state to be equally unsure of its presumptions for every child born, its entirely another to be absolutely positive of that presumption for a small percentage of births while the presumption goes totally unchecked for the vast majority.

    • While I think you are right to suggest that there is a lot of variation in terms of what we know about genetic relationships in parent/child relationships, I don’t think the generalizations are easy to make. To me, what this means is that as a matter of law (and as a matter of culture) parentage does not follow genetics. Or I could say that genetics doesn’t determine paretage–legal or cultural. I know this is unsatisfactory to you–but it is still an accurate statement.

      I think you (and certainly 0thers) have asserted that people should have a right to know about the genetics. That’s what Pratten is seeking. To me it is critical to distinguish between saying a person has a right (or should have a right) to know about the genetics and saying that the genetics carries with it some significant legal meaning. As far as I can tell, Pratten is directly seeking only identity. I don’t know what the law says follows from that.

  5. I don’t quite understand you. The state attempts to confirm paternity only when their involvement is sought by one of the affected parties.

  6. You just made my point partly which is that the state can confirm its presumption with genetic testing – and it does confirm it sometimes which creates a disparity in the accuracy of records for those records where the presumption was not confirmed. The state should be consistent in confirming its presumption accross the board or not at all in order to treat all births with eaqual care and consideration as to the facts.
    As to your question, if a single woman gives birth the state goes to work trying to find out who could possibly be the father because she may at some point apply for financial assistance from the state who gets that funding from the federal government and in those cases the feds outline how the states should go about ordering paternity tests to confirm the presumption before naming a father. That’s not to say the woman could not stonewall and say she does not have any idea who it is, what could they do about that? Nothing. But my point is that the state currently acts like being sure of the paternal realationship is really important before calling a man father when it has to go out and identify the father from an unwilling group of men – but the state is just ready to throw that out the door and is not concerned at all about accuracy if someone willingly agrees to take the rap. That’s lazy and it does not treat all births with the same level of scrutiny. I won’t get into who has a right to what. For now I think its enough to point out the disparity that now exists since the state has chosen to seek out fathers where before it settled for those who agreed. Fine mess eh?

    • One way to think about this is that there are a variety of different paths by which a man may become a legal father. If he is married and if his wife gives birth, he is a legal father. In some situations he can renounce the role or his wife can move someone else into it, both of which would implicate genetics, but in the ordinary case, we don’t care about the genetics. If a man is unmarried and holds a child out as his own for a specified period of time, he is a legal father. If he signs a voluntary acknowledgement of paternity, he probably becomes a legal father. And in some situations, if his DNA matches up with that of the child, he is a legal father.

      You can ask all sorts of questions: Do we have too many different ways to become a father? Do we use the right ones in the right place? Would we be better off with one uniform test across all situations? If so, what is that test?

      To respond more directly to the differential treatment point, as a general matter we worry about differential treatment when it seems like people are similarly situated. When situations are different, it’s common to have different rules and there may not be anything wrong with that. For better or worse, it is common to treat married people differently from unmarried people and this is one place you can see that.

      • Wow, for the first time I actually understood what you mean about the whole father thing. Well OK, but there is still the whole issue of a father being named and getting those parental rights solely because the state presumes him to be paternally related. To me, it stands to reason that if he turns out not to be paternally related then he was named father of that child in error and the mistake should be corrected. That does not mean he can’t still financially support the child if he wants to nor does it mean he might not have a right to visitation with that child to maintain the relationship they established – he might even be the right person to have sole custody. But why would the state leave the records looking like they still presume him to be paternally related when they know for sure he’s not?
        The first family I found was my mother’s. Her Mom and Dad were married but he died 2 weeks prior to her birth. Everyone believed they were married, I have a copy of the certificate that says its true. His Army pension was sent to his wife and daughter in Canada, my grandmother had no idea he had another family. Their marriage was invalid. He misrepresented himself to be single, my grandmother and the state presumed it to be true she believed she was his wife….but she wasn’t. He was able to enjoy the title of being her husband only because he misrepresented his situation to her and the state, not because he really qualified as a person capable of being named her husband. I’m going to assume that the marriage would be considered invalid today as it was 1933. There were no Social Security benefits to collect, but I imagine that if the same thing happened today the woman who thought she was married would qualify to receive those benefits, even if it would leave her unsupported.
        But I do finally get your point. Its clearer now. Still really illogical but clearer.

      • If there are so many ways to become a father the government should stop using the term “presumption of paternity” and start using the terms “guy who agreed to pay” or “guy who was ordered to pay”

        • I’ll certainly agree that the patchwork approach is confusing. The “presumption” is used because in some cases the man’s status as a parent can be undone if he (or someone else) challenges it properly. The idea is we’ll assume he is the father until someone shows us the sort of thing that will make us reconsider. Do note that this is not necessarily a common-sense inquiry. There are all sorts of rules about what sorts of things can rebut a presumption and when you can use it. I’m particularly thinking here that sometimes DNA can be used to rebut a presumption but sometimes it cannot be used.

      • Children of unmarried parents get a higher standard of care confirming the accuracy of presumption than children of unmarried parents. Children are not married to anybody hardly seems fair.

  7. The state does not routinely invade people’s privacy except when their assistance is solicited. They do not impose their involvement on society at large, nor should they.

    • Well, an example of where the State prevents parents from filtering information received by children would be school. It use to be that not all parents sent their kids to school. Some parents made them go to work to contribute financially to the family. *Or some parents did not want their children learning what was being taught. I think now parents don’t have a choice but to send their children to school or home school them based on State curriculum for their age group . Those rules are imposed on families that seek financial assistance and on those that don’t. Maybe the intent of that is to ensure that all children have access to the same information and opportunities so that they will be similarly situated as their peers when they enter adulthood.
      I understand that the State does not currently confirm its presumption for all children, I just think it creates a situation where some people will know the truth and others wont. If the block on information out lives the lifespan of parental authority (18 yrs) then I think the misrepresentation may violate the rights of that person’s child as an adult.

  8. Olive Pratten’s lawsuit is not an individual claim but a class action lawsuit and has been accepted as such.

    It is true that the donors were promised anonymity, but this is irrelevant in the eyes of the law. The question the court has to consider, is whether this promise was legally valid.

    Ms. Pratten for sure never promised anything.

  9. It is more than that Nelly;
    first the court has to determine whether any promise made by the clinic was legally enforceable or not.
    Even if it is not, or even if no contract was made, determining whether the doctor has an obligation to disclose, it a separate step.

    In order to win at that step, Ms. Pratten and those she represents, have to show that they indeed have a right to the information.

    To this end, the comparison with adoptees is a good one. (caveat. it seems so to me anyway, but i’m not a lawyer.)

    However, I must still pose my original question, Regarding adoptees: Do those who were adopted before the law was passed granting them access, do they also have rights to that information, or only those afterward?

    And if this is a class action lawsuit, who exactly is the defendant? Not one particular doctor I imagine unless he performed hundreds of inseminations.

    However, I am not certain that

  10. If a person was treated for a medical condition I think doctor patient consequentiality should protect a patient from having their information shared with others without their consent. People that provide their genes to Doctors and Fertility Clinics do not enter into their relationship with physicians as patients seeking treatment for a medical condition. I think one could argue that Physician’s can only guarantee confidentiality when the person is seeking medical treatment from them. I don’t think you could rely on your Doctor neighbor to protect your identity if you told him you robbed a bank at a barbecue. Maybe that is a bad example but I think the nature of the relationship determines the extent to which a person can rely on consequentiality.

    If the relationship does not lend itself to confidentiality I would still think the state would have to show that not releasing the records was an obstruction of justice. That the doctors and clinics were somehow aiding and abbeding the providers in committing a crime by helping them skirt responsibility for their offspring. Or maybe that would be a dangerous route to go, too extreem to be taken seriously. Maybe the government could just say it has a right to the records where those people signed over their rights to confirm that the providers are voluntarily turning over their genes.

    That still does not address whether or not the offspring has a right to see those records. But that ought to be easy in Canada.

  11. Excellent distinction!

    I wonder however if it would be just as applicable to egg donors as to sperm donors, since egg donors do undergo medical procedures.

    “If a person was treated for a medical condition I think doctor patient consequentiality should protect a patient from having their information shared with others without their consent. People that provide their genes to Doctors and Fertility Clinics do not enter into their relationship with physicians as patients seeking treatment for a medical condition. “

    • Kisarita
      Right. As I was writing that I thought that it would not be too hard to convince people that the egg provider is a patient where a sperm provider is not. They would have to really push hard that she was not a patient because she did not go to the physician seeking treatment for a medical condition. Its tough since the physician prescribes medication to get her to ovulate (i think). The argument would have to turn on convincing people that a person is not a patient unless they are seeking treatment for a problem she wants fixed. I think people are still patients in elective procedures like breast augmentation because they are seeking professional help to correct a perceived “ill” in their bodies. The procedures an egg provider goes thru are not something she sought help with – maybe the argument would be that the procedure served the doctor, his egg buying customers and the vendor, the point of undergoing procedures was a sales transaction. But would the Dr be obligated not to be negligent in the proformance of those procedures as a physician even if she was not a patient? Yes Kisarita much tougher to say the women are not patients. There is a question in my mind emerging about whether its ethical for a physician to perform surgery (is it?) on someone for his own benefit like selling what he’s harvesting seems to cross a line. We’ll see what happens.

  12. Oooh! The providers sign waivers. If their identities were so protected and so secret then what purpose would those waivers really serve. It seems to me that the act of both requesting and signing those waivers shows that everyone involved anticipated a requirement to disclosed and took steps to protect themselves. Yes, that is the best way to argue it I think. It shows they did not have an eternal expectation of privacy.

  13. If the providers will be protected from support payments and protected from criminal actions for abandoning their offspring based on the waivers they sign, then the providers have not committed a crime and the only thing they’d have to worry about the release of their identity is how people in their private lives will react if they learn he has children he’s never met. If people in their lives react to the babies in the closet negatively that is something they’ll have to manage I don’t think the government has a duty to prevent them from feeling embarrassed about doing something that was not a crime. I don’t think the government has a duty to act as social secretary either – if they are contacted by their children and don’t want to meet them all they have to do is say, “no”. They’ll have to realize that nothing is stopping their offspring from approaching other members of the family. They can say no as well.

  14. Placing such importance on protecting the donor’s privacy implies that this is something shameful and embarrassing. With such an attitude how can we then be surprised that the children feel stigmatized?

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