More on BC Sperm Donor ID Case

This morning I commented on a pending case in British Columbia.    (You can read that post to get up to speed.)  I’ve been thinking about it off and on during the day.   I found the actual opinion–which is here.    I also found other media coverage, which might help round out the picture.    

There are two things I think I can discern from the opinion and the stories, but I’m not sure these clarify the picture for me.   First, it appears to me that the ruling of the court is preliminary.   What I mean is that the court has not yet reached the substantive issues raised by Oliva Pratten. 

The provincial government had advanced a number of reasons why the case should not proceed–things like standing and mootness, which are of great concern to courts and lawyers, but perhaps not so much to the general public.   The court rejected them.   But, to repeat myself,  in doing so the court didn’t rule on any of the substantial issues raised.  Thus those questions–whether Olivia Pratten is entitled to the relief she seeks and, if so, on what basis–remain to be addressed.    

Second, it appears that the case is headed for trial some time next week, but I’m not entirely sure what sort of trial might be envisioned.  In the US we generally use trials to decide facts.    (A fact at issue here is whether the records requested by Pratten still exist.)   But it seems to me that there are questions raised in this case that are much more important to a wide range of people than that factual question.  

As far as I can tell, Pratten is proceeding under two theories.  First, I think she asserts that she has a right to know the identity of her biological father.   (That’s in paragraph 3 of the opinion.)  Second, I think she asserts that the Adoption Regulation Act impermissibly discriminates against people in her position.  I think this is because adoptees have protected rights with regard to receiving information about their original parents while children conceived via third-party sperm do not have analogous rights. 

Each of these theories is interesting and warrants discussion.  But I don’t think they really turn on facts (like whether or not records exist.) Rather they turn on questions of law:  Does the right asserted by Pratton exist and if so, what is its scope?   Are the positions of Pratton and an adoptee sufficiently similar to warrant similar treatment?    I suppose there may be some subsidiary questions of fact, but primarily these seem to me to be questions of law. 

All of which is to say I don’t really understand what is likely to happen next in this case.   This doesn’t make it any less interesting, of course.  Just a bit puzzling.   I’ll update as I find more information.


6 responses to “More on BC Sperm Donor ID Case

  1. Wasnt the opposition trying to say that she should not waste the courts time trying to gain her right to see her own records when its already been established that those records were distroyed?

    I think the right to request and be given what are essentially her own medical records is an entirely separate battle. Right now it is irrellevant that the records don’t exist, she does not even have a right to know that currently so THAT is the moot point. The doctor, what he promised and what he recorded, are something she has no right to know about yet. First she has to win that right and then the doctor can say “gee I can’t remember what I did with them” If doctors are suppose to maintain their patients records for 28 years and he failed to do that then he might be slapped on the hand. She may never see those records but if she wins thousands of other donor conceived people will get to see theirs. Atta girl.

  2. Olive Pratten’s lawsuit is not an individual claim but a class action lawsuit, so it not really about destroyed records.

    • I think it is actually both an individual action and a class action. She is seeking her individual records. She is also seeking broader relief for the class of similarly situated people. One of the thing the recent opinion addressed was whether she was a suitable person to bring the class claim. The court determined that she was.

  3. Maybe my comment is not related to this class action, but I would like to voice my concern about the risk of marriage between siblings sired by the same donor.
    Is there any system in place to identify a donor with an ID number giving genetic, health and other details, to possibly guard against these risks and also share some vital information with the children out of third-party conception?

    • This is a question that has come up at various times here. You can look around under the tag “sperm donor” I think and find some of the discussion. You might also check out Donor Sibling Registry–which is discussed here from time to time It’s not an official registry, but does some of what you discuss.

  4. That’s a pity that this option is not an internationally applied one..

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