Sperm Donors Beware: Can You Bank On Your Anonymity?

The Court of Appeal for British Columbia has recently held that the offspring of anonymous sperm donors ("donor offspring") have no constitutionally-protected right to know the identities of their biological fathers. This British Columbia case - Pratten v. British Columbia (Attorney General), 2012 BCCA 480 - is not binding in Ontario, but it should give Ontario sperm donors pause. The plaintiff, Olivia Pratten, has expressed her desire to appeal this decision to the Supreme Court of Canada. If leave is granted, the Supreme Court's decision on the merits may have far-reaching estates planning ramifications for sperm donors here in Ontario.

Background: The Donor Offspring

In 1982, Ms. Pratten was conceived using sperm from an anonymous donor. Wishing to know more about her biological origins and identity, Ms. Pratten launched an action in the Supreme Court of British Columbia seeking declaratory and other relief. In particular, she claimed that when British Columbia enacted the Adoption Act for the benefit of adoptees only, it contravened s. 15 (equality) under the Canadian Charter of Rights and Freedoms by impermissibly discriminating against donor offspring. She also challenged British Columbia's failure to enact legislation to assist donor offspring in obtaining information about their biological parents. She sought a declaration of positive rights in this regard under s. 7 of the Charter (the right to life, liberty and security of the person).

Ms. Pratten, along with other donor offspring, filed affidavit evidence describing their personal experiences, fears and concerns about their limited knowledge of their biological origins. These concerns included inadvertent consanguinity; compromised health on account of incomplete family and medical histories; and struggles with feelings of loss and incompleteness.

Citing the Supreme Court of Canada's decision in R v. Kapp, [2008] 2 S.C.R. 483, the British Columbia Court of Appeal ultimately found that the impugned provisions of British Columbia's Adoption Act and its regulations qualify as an ameliorative program within the meaning of s. 15(2) of the Charter. The Pratten court found that, historically, if not currently, adoptees have been subject to negative social characterization. It was open to the British Columbia legislature to provide adoptees with the means to access information about their biological origins without any obligation to extend the same benefits to others seeking the same...