More About The Pratten Case: Challenge to BC Sperm Donor Anonimity

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.)

Nonetheless, I wanted to return with another post focussed on the case itself.   There was some press coverage during the last week that helps flesh out the issues being tried

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.


27 responses to “More About The Pratten Case: Challenge to BC Sperm Donor Anonimity

  1. Julie,

    I agree that her case is simply based on the right to know where she comes from when she is an adult. It really isn’t asking a whole lot.

    The roadblocks people will through up have already been proven moot by adoptees. We do not turn into stalkers. We are simply human beings who want to know where we came from. Some want more info, some want a relationship IF it is mutual. But we just basically want the same rights everyone else has by default…

    And even if the fears of sperm donor shortages come true…so? Is someones desire to become a parent through donor methods more important than the desire to know where you came from? I am always amazed that the need to become a parent seems to overide any concerns about the feelings said child/adult may have in the future…kind of seems wrong side up…

    • Wonderful comment and very succinct. Olivia is not pushing for anything else than acces to information for all adopted and donor conceived people. I don’t see how her claim could be construed as anything more than that or why anyone should expect a slippery slope into unforeseen consquences.

      Whether or not there are adopted or donor concieved people who don’t express any interest in knowing their genetic parents should not be a factor in this decision. If they are not interested, how does it harm them if others are allowed to locate their genetic parents? In Oregon, a suit was made by a few birth mothers who opposed open records but the courts wisely decided that to prevent free access to records for all adopted people should not be hindered by the fears of a few.

      • Exactly. A fact does not need to demonstrate its usefulness to prevent itself from being concealed or butchered. Julie is always saying something akin to “but why is it really important” or “there is no evidence to suggest that children suffer from not knowing…” Which creates a circular debate that can’t be won by either side. Bottom line is that nobody should have to prove that the truth is useful or important to them in order to expect to hear the truth out of someones mouth or see the truth in print. A fact deserves to exist in the universe unaltered whether anyone cares about it or not – its certainly nobody’s place to determine what people know or don’t know about their own origins.

  2. Julie, I wanted to comment on your last few sentences:

    “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.”

    If Pratten is successful (and for the record, I hope she is as I generally support ID release donors), we will have at least a short term sperm shortage in Canada, though it probably won’t be a direct result of the case. As you note, there are only 40 active donors in Canada. The rest of the sperm is imported from the US. This is technically illegal under the Assisted Human Reproduction Act as Canada prohibits payment for human gametes. However, because the AHRA is caught up in other litigation (it is being challenged by the province of Quebec for overstepping into provincial powers), that part of the Act is not currently being enforced. A number of commentators are saying that once the Quebec challenge is resolved, the Act will be properly enforced and the flow of sperm across the border will cease (given that US donors are all paid). This will leave us with 40 donors, the vast majority of whom are completely anonymous. If the one Candian bank is forced to switch to open ID donors we are likely to have even less.

    Canada obviously needs to recruit more donors and those recruited will need to agree to be open ID donors. While their may be “no shortage” of open ID donors in the US, they are still far fewer in number than anonymous donors. Most sperms banks seem to have about a 3/1 ratio in favour of complete anonymity. So the recuitment process in Canada, if all donors must be open ID donors (and the US supply is shut down as it inevitably will be soon), will likely be much slower if Pratten wins than it will be if she loses.

    • As I mentioned elsewhere on the blog, I was recently at the annual meeting of the American Society for Reproductive Medicine. (That’s the ASRM for short.) Many large sperm banks with international distribution were represented in the exhibit hall. I made it a point to talk to a number of them and the availability of donor ID sperm was one I raised. Of course, my results are totally anecdotal and I am not making any claims about the ease of shipping country-to-country, etc. But I’d say that the sense I got is there are enough men who are willing to do donor ID donations. Their characteristics are different from the anonymous donors in some ways–again, keeping in mind that this is all anectdotal. They are older, more likely to have children already, and more likely to be motivated in part by altruism than just by money. I have been meaning to offer these observations in a separate post and will do so very soon.

      No doubt there are time lags and switchover costs and all that. Any time you change the system you probably run the risk of creating a bottleneck. But I myself do not take the assertion that there will be no donors terribly seriously as a long run proposition.

    • “A number of commentators are saying that once the Quebec challenge is resolved, the Act will be properly enforced and the flow of sperm across the border will cease (given that US donors are all paid). ”

      What an unfortunate image! Maybe the government needs to build fences on the border to prevent this flood of illegal immigrants.

      • Bill, as I typed I realized that the image was not a good one, but was in a hurry. Thanks for your post – it gave me a good laugh!

        • Humor is a requirement in these discussions.
          By the way, you mentioned earlier that parents are not legally required to report their medical history to their children. If important medical information about the donor is known or discovered later (such as in the suit against California Cryobank re: an offspring’s inheritance of a serious kidney disease from a donor), shouldn’t he have an ethical duty at least to inform DI recipients of that door’s sperm?
          I just listened to Hank Greeley from Stanford Law on Talk of the Nation about the social impact of genomics. He mentioned the following that would indicate that the law may get involved in forcing doctors to reveal inherited diseases:
          “PALCA: Well, so give me an example of – I mean, so if you found something in your genome, can you imagine a day where you were legally obliged to tell your son or your parents or something like that, or your child, what this was?

          Prof. GREELY: Yeah. In fact, I can. This is one of the few areas in genomics where there have actually been a couple of lawsuits, one in New Jersey, one in Florida, involving doctors who were sued by children whose parents had diseases that were genetically linked.

          And the children claimed that the doctor had a duty to tell the children that their parent had this problem. One of the courts said yeah, the doctor might have that obligation involving a hereditary colon cancer syndrome.

          The other court in Florida said, well, no, the doctor didn’t have an obligation to tell the children, but the doctor had an obligation to tell the father that he had an obligation to tell the children. “

          • wow – who are you? You’re so cool, you know everything want to learn about.

            • Thanks, Marilynn.

              I don’t know everything you want to learn about, of course, but I have spent the last 28 years exploring these issues since my mother disclosed to me (when I was 37) that I have an anonymous genetic father through the University of Utah Medical School, Class of 1945. The following description is extensive and I don’t feel comfortable about it since it may sound self-serving. However, it is merely my history of involvement in the donor conception arena plus some family history:
              I am 65, a retired (recoverying) architect with a degree in English as well as Architecture. I’ve been married for 41 years to a genetics researcher. We have two grown, married children but no grandchildren yet.

              I have been an advocate for disclosure all that time, and eventually became an advocate for the elimination of anonymity. I’ve studied the history of DI and its early connections to eugenics, much of which is unavailable, thanks to the prevalence of secrecy from 1884 to the early 1980s.

              I am currently taking classes at the U of Utah in ethics, political science, sociology, and a special seminar class at the U’s Fertility Center on Reproductive Issues, taught by two professors: the Director of the Center and a professor of philosophy. Her work includes bioethics, specializing in End of Life issues as well as Beginning of Life issues, as well as the ethical issues related to drugs in medicine.

              My activities include posting widely on the web, writing a chapter on DI for an upcoming book edited by a bioethicist in Calgary, speaking at conferences for the American Adoption Congress, IVF World conference in Sydney, World Association for Infant Mental Health in Yokohama, American Society of Bioethics and Humanity in Montreal, several symposia for the Infertility Network in Toronto. I’ve also been a subject of several documentaries, one in France, two in the UK (a BBC film that was aired world-wide), and three in Japan. The last one led to a book about me that I’ve never been able to get translated from Japanese. I’ve also been involved in many TV and magazine interviews. You can Goggle my name for those (NY Times in June 1994 [on Father’s Day] is a fairly good one).

              My beginings in advocacy started with local adoption support groups in Utah and also with the American Adoption Congress for the last ten years. That explains my conviction about the relevance of the adoption experience to people conceived through anonymous “adoption.” I am a co-moderator of two ten-year old web sites on Yahoo: a private site for DI adults and a public one called Sperm Donors.

              Since 1993, I’ve also produced an ongoing survey of the Attitudes of DI adults about Secrecy, Anonymity, and Access to Information. I’ve used the data from this in several presentations, always with the caveat that I am not a sociologist, that the respondents [now numbering 131] come from a those who have contacted me, and that the data only represents these people, not all DI adults. I have been working with a sociologist to analyze the data for publication but I am hesitant to publish it due to the negative reaction to all the other surveys published. Besides, I feel these studies don’t completely capture what our experiences are like unless they can include extensive narratives from the subjects.
              Sorry for the length of this.

          • This is an interesting line of thought. I can certainly understand an argument that a parent has a moral obligation to tell a child about genetic conditions of which the parent is aware. And I’d assume that typically the parent follows through on that. But I can also imagine that there are instances where the parent does not tell the child. And I cannot imagine that the child then has any sort of legal claim against the parent.

            Now in this regard perhaps donor-conceived children do have a greater right. It seems to me easier to construct a legal argument that the sperm provider has an obligation to pass information along to the child (or the child’s parent, in the event the child is still young.)

            I think this might be because we have strong doctrines of family privacy that would prevent a court from intervening in what is essentially a parent/child dispute. But the sperm bank/client relationship is a contractual/business one and you wouldn’t find the same hesitation.

            • Couple of quick points since I’m in the middle of a long project.
              “Now in this regard perhaps donor-conceived children do have a greater right. It seems to me easier to construct a legal argument that the sperm provider has an obligation to pass information along to the child (or the child’s parent, in the event the child is still young.)
              B: Well, the problem here is that should the genetic father develop a late onset hereditary disease and wanted to forward the information to his unknown adult children, the clinic and/or RE would bar the access. I find it humiliating to be the subject of such arbitarily presumed powers, especially since the parents and doctors are no longer actively involved in my life.

              “I think this might be because we have strong doctrines of family privacy that would prevent a court from intervening in what is essentially a parent/child dispute. But the sperm bank/client relationship is a contractual/business one and you wouldn’t find the same hesitation.”

              B: Again, why would this apply once the child had autonomy? We DC adults should not have to ask our parents’ permission or go on our knees to plead with the clinic with whom we do not even have a contractual relationship.

              With respect to medical information, the clinics do not keep these updated nor do they feel any obligation to the protect the child’s interests.

              From another angle, it concerns me that parents who do not disclose run the risk of having to lie to the child when some paternally liked hereditary disease crops up in the extended family. I’ve seen this among some of those I know both in the DI and adoption world (among those adopted people who were not told early on). Any parent ought to tell to save the child (or even adult) from making wrong assumptions about their health. It should at least be a moral imperative for the parent to tell. [I wish there were an intelligent legal way to make birth certificates record DI and adoption]. In one case, an adopted woman I know decided never to have children out of fear of inheriting major diseases from both sides of family tree. She wasn’t informed she was adopted until she was in her late thirties, after having a couple of failed relationships due to her fear of having children. Since she was poor, she couldn’t afford extensive testing for these diseases. These kinds of stories are all too common among those of us who were not told as children.

              I don’t understand why some people get the wrong impression that knowing one’s genetic parents is not medicially important. The mental health of knowing who you are and whence you came should be considered a medical issue, not a frivolous matter of mere curiosity.

              • Good grief Bill the fact that you and millions (that’s M-M-M-MILLIONS) of people have been walking around on this earth unable to recognize your immediate relatives and they or us or we are unable to recognize you and them – that is a GIGANTIC public health emergency. That goes way beyond worrying about siblings marrying eachother – think of the first cousins – oh not just your 1st cousins, here is where it gets absolutely terrifying, think about your children’s first cousins. Think about how many first cousins your children will have within 100 miles of you. What about today in this modern age where men are fathering 50 children they will likely end up with 200 or 300 grandbabies all around the same age within 100 miles of eachother, same race same socioeconomic status. Those kids will end up in the same classrooms same bars same beds and same back-seats of cars together. DNA verification for parents at birth to prevent lying I think is not invasive at all. At minimum the woman should have to sign under penalty of purgery that she is maternally related to the child and so is the man she names as father and the man should have to sign to that effect as well. They should have to swear under oath that they are not lying and if it ever does come out to be a lie I think the woman should owe the man for all the prior child support maybe have to go to jail for fraud. I know I sound extreme – but the health hazard for the world seems so extreme. I said before I hear the theme from deliverance playing and Julie said she did not think inbreeding was such a big risk. On Spin doctor they said people should just do blood tests before they get married. John Howard may like that idea, but in reality how many babies are born to unmarried women every year? How do people even know if the sperm they are donating is not going to their own family? Certainly down the line 1 generation women will definately be inseminated with their own cousin’s sperm. If its not outlawed then every baby needs to track to a donor ID so they know who their relatives are at least this generation and their decendants. No privacy for people that buy sperm and eggs.

              • I think you’ve misunderstood one point I made, though I’m not sure. I think family privacy might prevent a child who was not donor-concieved from going to court to force her/his parents to provide genetic heritage information. But I don’t see how family privacy can be invoked to prevent a child who is donor-conceived from receiving the same information. The key thing is she/he isn’t seeking it from a parent but from a sperm bank. (While the child is a minor, the child probably cannot initiate any action like this on her/his own–but that’s a different matter.)

                And I don’t mean to suggest that genetic information is not medically significant. I just wanted to point out that this reason for seeking information can be distinguished from reasons that have to do with understanding identity or rootedness. That is to say, there are (at least) two distinct reasons why people may seek the information.

            • This can be solved if sperm (and all tissue banks for that matter) would be required to have an explicit contract with the donor that he will disclose, that the donor signs.

              • I’m not sure what you mean. Are you saying that sperm banks should require donors to disclose to their own children that they have half-siblings out there? I’d love that if it were enforceable and if sperm banks really had that kind of social responsibility. I would love it if the sperm banks would also require their recipients to disclose to their DI children and for the clinics themselves to provide their recipients with contacts with all the other recipients (and the donor too) so every donor sibling one could freely know one another. However, this industry thrives on secrecy and their sense of power over others’ lives.

              • That’s another idea, I was referring to disclosing if they develop a condition known to be genetic.
                Of course, as long as the donor remains anonymous, the contract would be unenforceable.

    • “Canada obviously needs to recruit more donors”.

      Why would the government need to recruit Canadian sperm donors? Or do you mean the companies that are in Canada would be vastly more profitable if they could harvest and sell sperm themselves. They are loosing all their business to the American clinics. It must be very frustrating for them.

  3. The question of donors willing to be ID release has been heavily studied by the one person who has done more excellent research on all donor conception issues than anyone else: Ken Daniels of the University of Canterbury in Christchurch NZ. If you Google his name you’ll find a compendium of all his research that is extremely comprehensive. His studies of donor attitudes is very helpful. I think you’ll find that fear of shortages are exaggerated as shown in a recent article mentioned on either DSR or Spermdonors, both on Yahoo, that revealed that the so-called shortages in the UK were simply a matter of misplaced records. It is fairly easy for clinics to make a claim that ID release requirements are detrimental to the supply. I think the truth can be easily hidden by those who don’t want the status quo to change, especially those who don’t want to cut into their lucrative profits or modify their recruitment strategies. In a system that has relied on maintaining their power for over a hundred years through anonymity and promotion of non-disclosure, change to greater openness is heavily resisted.

    The interesting claim that many clinics who continue to push the idea that the costs of getting ID release donors, keeping track of their ongoing health records, and keeping track of their locations is countered by the evidence from the Sperm Bank of California which does just that and yet is a non-profit service.

    • I met Ken at the ASRM and we’ve been in touch. I agree that the alarmism over sperm shortages that ties it to requirements that donors be identifiable seems to be unwarranted. There are any number of other things going on and frankly, I think the media coverage of this has been uninspiring to say the least.

  4. Reply to Marilyn (reply link missing at her comment) re: Good Grief!

    You don’t sound radical to me. I agree with that. I think about this a bit too often, in fact. When NHK (Japan TV) came to Utah for an interview with me during the Winter Olympics in 2002, they did a segment with my son and I raking leaves on our front lawn. They asked my son Billy who was 27 and not yet married then: what do you think about all this? He said that I might have around 20 half-siblings [since I was born in 1945, that’s probably more likely than 50] he could then have around 120 first cousins, given the prevalence of large families in Utah. He said that scared him about dating and having sex with a first cousin so he actually decided to choose abstinence (he’s not even Mormon) until he could be certain of his girlfriends’ parents. This one statement out of the whole hour documentary had the biggest impact on the Japanese audience, which NHK said would probably be around 34 million.

    By the way, the father of my son’s wife does look a lot look me but Billy managed to verify with his wife (she of course knew all about the DI stuff after their third date) that it would have been impossible for her father to have the same as mine. He was born in a distant state several years after me. Of course, those med students do get sent all over the place for their residencies. At any rate, we did not do any DNA test.

    My daughter married a man born in Italy whose father was born in Pennsylvania at least ten years before me, when my genetic father would have been around 13. However, this father is French-Canadian and so is my wife, so we are actually more concerned about the possibility of Tay-Sachs, which is as common among the Quebecois as it is among the Ashkenazy.

    • Show me a 27 year old single guy that hesitates at an offer of sex and I’ll show you a guy that’s got one eye winked and two fingers crossed behind his back!

      I get it though – he was cautious and careful before getting into any serious long term entanglements due to the very real fear of creating his own little brood of appellation hillbillies. Good call.

  5. According to HFEA figures, the numbers of UK sperm donors have gone *up* four years in a row since the ending of anonymity, thus reversing a three year decline. The 396 donors in 2008 was the highest figure since 1996, and 77% more than in 2004 just before anonymity ended.

    • Yes, I know. I’ve written about this because I don’t understand where the idea that the sperm donor shortage is caused by the change in law comes from. It is a persistent myth, as far as I can tell. It is worth keeping in mind, however, that there does seem to be a shortage of third-party sperm for some reason.

      • I don’t think there is a shortage of third-party sperm, but rather of funds. I have seen 3 people post comments on BBC articles to say that they have contacted clinics to donate, and been turned away for no apparent good reason. Two were told that the clinic already had enough donors, and the third was told he was too old at 37, even though the HFEA age limit is 45. I can’t verify any of these, but in 2006, an HFEA spokesman said that Manchester was “an area where supply outstrips demand”:

        Something doesn’t quite make sense here. I suspect that some clinics (and Dr Pacey in particular) are exaggerating the difficulties because they were against the rule changes, and also that some NHS clinics are citing the donor shortage when the real reason is that they don’t have enough money to treat everyone. Infertility treatment is very expensive, and the longer they make the waiting list, the more couples pay for treatment at a private clinic, and many lesbian couples will turn to private donors. Some married couples will get pregnant by themselves after two years of trying. That all means less work and more money saved for the NHS. Not very reassuring for a 38 year old woman seeking donor sperm I know, but this seems to be what’s going on. Private clinics don’t seem to have problems obtaining donor sperm. A couple of years ago, when people were complaining loudest, the London Women’s Clinic was advertising that they had over ten thousand vials of the stuff.

        If there really were a shortage, I don’t believe it would be a huge problem to fix. You could start off by writing to all male blood donors aged 18-45. They’re healthy and altruistic, so presumably the perfect target group. I’ve been a blood donor for over twenty years though, and while I regularly see flyers for organ donation, bone marrow donation, and platelet donation, I’ve never once seen anything trying to recruit sperm donors. Importing sperm is another option. It would also be worth considering changing the rules so that the donations of donors who donated over five years ago, and whose genetic children appear healthy could be used for twenty families rather than ten. All donated gametes are destroyed after ten years, but I’ll bet there are thousands of vials which are 6-10 years old, which are just going to be destroyed after ten years because of the limit on children per donor. Increasing the number of births per donors, or actually paying donors raises other issues, but why do people keep focussing on anonymity?

        If a lot of donor sperm suddenly became available though, could the clinics handle it, and could the local health authorities pay for it to be used? Probably not, and I think that might be the real story here. I doubt they’d even be able to handle the number of sperm donors suddenly doubling. Maybe this whole thing is all about saving money. There’s already been much debate about the “postcode lottery”, whereby some couples can get 3 free cycles of IVF promptly, where others have to wait over a year, and may only get one cycle. This is using the husband’s sperm, so nothing to do with donation. I just can’t help wondering if it’s all about the money.

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