Further Thoughts About Pratten and Anonymous Sperm Donors

My last post was about a Canadian case I’ve been following from some time–a case in which Olivia Pratten sought access to identifying information about the sperm donor use in her conception.   The British Columbia Court of Appeals rejected her claim.   There’s further coverage of the case (and fairly critical coverage) here.

As I think about it a bit more, it might be important to distinguish between two slightly different arguments Pratten has offered.  First, you could argue that whatever the rights of adopted and donor conceived people are, they must be treated the same.   I’ve written elsewhere about the sameness/difference of adopted and donor conceived people.   I think it’s complicated.  (The post I have linked to was spurred by the lower court opinion in Pratten’s case.)

There are arguments for sameness and there are also arguments for difference.  Part of the issue, perhaps, is that adoption is itself a broad category.  There are, for example, people who are adopted as adults and there are also those who are adopted as infants.   Their situations may be quite difference and that makes it somewhat difficult to argue that a third group of people (those who are donor conceived) are like adopted adults.   I think it might be easier to make the argument that those adopted as infants are like those who are donor conceived, but even there I think there is a picture of sameness and difference.

There’s a second argument, though, that avoids all this messiness about the breadth of the category “adopted.”    That is an argument that every  individual has a right to access to her/his genetic lineage (or something along those lines).   Now this assertion has implications for both adoptees and those who are donor conceived and the implications may be similar, but the argument doesn’t require you to initially establish that those who are donor conceived are like those who are adopted.

In this sense, it is quite a different argument for the one described above.  It is an argument for the existence of a particular right rather than an argument in favor of equal treatment.   But to be clear, the existence of this right is quite controversial.   Indeed, you could say that it lies at the heart of a lot of the arguments about use of third-party gametes.  I think it is fair to say that historically it has not been widely accepted and therefore, it is in the nature of a newly created/recognized right.   (I’m prepared to be told I’m wrong about this, but it is what I believe to be true.)

In the language of US constitutional law (which I understand does not apply in Pratten, but still, it’s interesting) the first argument is an equal protection argument while the second is a substantive due process claim.   Each of these doctrines has its own controversies to consider.    Equal protection turns on the assertion that two things that are essentially similar are being treated differently.  Apart from establishing that the things are essentially similar you also have to convince the court that the distinction is being drawn on a problematic basis–as where you argue that a distinction is being draw based on race or sex.

Substantive due process may be even more controversial. In substantive due process the court identifies rights that are not directly included in the Constitution.    The Court used this process when it established the right of a woman to choose to have an abortion which, as you doubtless know, is quite controversial.   And while it is true that this last discussion is focussed on US constitutional law, there is a broader question that is always raised when you use anything like a substantive due process argument involving a new right:   How do we know what rights exist and where do they come from?



3 responses to “Further Thoughts About Pratten and Anonymous Sperm Donors

  1. Julie,

    If she gets to the Supreme Court of Canada I think she will win. She should get there – they heard a case on brothels so they aren’t afraid of taking on hard topics.

    Canada is a signatory to the UN Rights of the Child Treaty. I quickly looked for an updated report but am stuck with providing you the 2009 Canadian report on how much they have achieved to being compliant and where they are lacking. If you go to page 37 they speak to adopted not having the same rights as the non-adopted. This was before donor conceived cases really hit mainstream consciousness. Donor concieved in my opinion fall into this category that is based on the right to your identity in the treaty – can’t think of the wording.


    Canada has equality rights and due process rights set in stone and perhaps Canada goes further – I don’t know. Below is the Cdn Bill of Rights in pdf form.


  2. Adoption reacts to family separation, donor conception causes it. So you might as well compare being adopted to being orphaned or being neglected or being abandoned. Adoption does not seek to separate a person from his or her family it seeks to unite a person with an adoptive family because their own family failed to take care of them. Adoption is a solution for the problem caused by the family separating – which is who is going to raise the child to adulthood.

    Donor conception is generally followed by the birth of the donor’s offspring and the prerequisite absence of the donor from his or her offspring’s life in the capacity of daily care giving and financial support – its the abandonment parental responsibilities and title that cause the family separation for donor offspring, not the conception. There are adopted people who are also the children of gamete donors. There are adopted people who are also the children of traditional surrogates.

    I think it is a mistake to say donor offspring should have the same rights as adopted people I think all people should have the same rights and responsibilities as one another which would mean an overhaul so that there was no class of people with special different obligations and rights different than others

  3. All people can obtain copies of their legal relatives birth, marriage and death certificates. Those records are medically and socially relevant for people whose legal relatives are also their genetic relatives. It is not fair that some people are allowed access to their genetic relative’s birth, marriage and death records while others are not. The information being concealed and kept private is pertinent to the lives of people other than the person wishing to keep it private. One member of a family should not control the flow of vital information to the rest of the family. Information that would enable them to avoid unintentional incestuous relationships and enable them to make the most informed decisions possible. The government can’t force families to communicate but it can and does give them the right to access the vital records of people in their immediate families. The reality is that ammended birth records are not vital records according to the Health department and so adopted people should be able to access their own vital records and their relatives vital records the way everyone else can access theirs. This is unequal treatment for adopted people compared to the rest of the population. Many people have false or incomplete birth records not because of adoption but because of paternity fraud by their mother or by collusion by their mother and spouse to prevent another man from being named father and sometimes he is a donor other times a lover. Many people have false or incomplete records because their parents were donors and the people raising them colluded to provide false and misleading information on the vital record of the child they wanted to raise. Donor offspring are specifically prevented from having genetically accurate vital records here in the United States and that is unequal treatment. The other non adopted, non donor offspring wiwth inaccurate and incomplete records have been wronged, their right to accurate vital statistics and truthful medical records should exist despite the fact that their vital records are wrong. The incorrect record should stand as evidence that they havesuffered an injustice. Other members of their family have also suffered an injustice because for the period of time where the record was incorrect they would not have been able to access it and may not even know that the person was related to them.

    I think it very much is an equal rights issue it just needs to be framed more broadly to recognize that many people are prevented from knowing who their relatives are and this is unnecessary, unhealthy and entirely preventable.

    The fact that many people would be more likely to have abortions if their identities were disclosed in adoption or would be less likely to donate if their identities were disclosed in donor conception is very likely true, but that should not mean that their offspring should have less of a right to information than every other person born. We are telling people that in order to save their lives we had to take away a bunch of the rights that other people have and that they should be grateful to be alive and stop bitching about the rights they lost in the process. That is wrong they have no control over their parents actions and their rights should not turn on whether or not their parents might never have conceived them or whether or not their parents might have aborted them. They exist and deserve to be treated with at least the same dignity as other people born to parents who were not quite so flakey.

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