I wanted to go back to the case being litigated by Olivia Pratten in British Columbia. You can find a couple of earlier posts here and here. I used the case as a jumping off point for a discussion about sameness/difference with regard to adoption/use of third-party gametes. That’s been quite lively.
My original thought was to try to keep the two threads separate–the first could be general, the second more narrow and specific. That isn’t exactly how it developed, however, and so there’s a substantial discussion about matters relevant to Pratten case in the other thread. (I’m thinking here about some of the specifics of BC adoption law.)
As I understand it, Pratten has two main arguments. First, she asserts that she and others conceived via third-party sperm are entitled to treatment afforded adopted children under BC law. To the extent adopted children have access to the identity of people who are genetically related them, donor-conceived children should have the same access. This is in the nature of what we in the US would call an equal protection argument. In order to decide it you must first consider the ways in which adopted children and donor-conceived children are similar and then consider whether the similarities warrant equal treatment. This general question is what spurred me to develop that parallel thread.
Even if Pratten persuades the court on this point, this theory can get her only the same treatment that adopted kids get. There’s some useful explication of the treatment of adopted children in Canada in some of the earlier comments, courtesy of Fiona, who is herself a Canadian legal scholar. You might want to read those comments.
Pratten also offers a second argument: That failing to provide information about the gamete donors violates her rights under the Canadian Charter. This argument doesn’t depend on the treatment of adopted children. It seems to me it is analogous to a substantive due process argument here in the US. And it is the legal version of the often-expressed sentiment that donor-conceived children have a right to know their gamete providers.
This is an important (and independent) argument and one I want to set aside just for the moment so that I can devote the time and attention to it that it warrants. What I want to do just at the moment is discuss that nature of Prattens’ claims, independent of the legal argument supporting them.
As I see it (and I could be wrong about this–hopefully someone will correct me if this is the case) Pratten’s argument is a relatively narrow one in the grand scheme of things. She is not arguing that the sperm provider is or should be a legal parent. She is not arguing that the sperm provider should be involved with a donor-conceived child before that child reaches adulthood. She is not arguing that there is anything broadly problematic about the use of third-party gametes, apart from the issue of provider anonymity, of course. And to the extent I can tell, she has raised no objection to single women or lesbian couples using third-party sperm to create their families.
The narrow nature if Pratten’s claim is noteworthy. Some who advocate on behalf of the donor conceived have a much broader agenda–one that would see all children raises by married, biologically related, heterosexual parents. These are the folks who brought us last summer’s study ‘My Daddy’s Name is Donor.” That study, though badly flawed, got wide play in the media.
I suppose my point here is one I make frequently in a variety of contexts: It’s very important to formulate and examine arguments with great care. I think you can make the argument Pratten is making without embracing the more extreme conclusions reached by Family Scholars. If you do that, however, you ought to be clear about doing that, lest words be misinterpreted and given broader force than was intended. Similarly, you can argue in favor of the use of third-party gametes and also accept some sort of donor ID-release scheme that would allow those conceived with third-party sperm to receive access to information at some point in their life.
There is just one other observation I wanted to offer before ending this post. It’s been argued that mandating some sort of ID release will lead to a dearth of donors. I’m extremely skeptical about this. Reports of sperm shortages seem to be either over-stated or misunderstood. Sperm banks in the US routinely offer sperm from individuals who have agreed to be identified when a child turns 18. I have not heard that there is any general shortage of such donors. Thus, if Canada has only 40 donors at this point (when there is no required disclosure) there is something else at work.