While adoptive children have the right to information about their birth parents and children of sperm donors have no rights to information about the donors, there is no discrimination, the province argued Tuesday.
That's because the provincial law is targeted at adoptive children and does not address - or violate - the constitutional rights of children of gamete donors, who can remain anonymous, provincial lawyer Leah Greathead told the B.C. Court of Appeal.
The province is appealing a B.C. Supreme Court ruling that gave offspring of gamete (sperm or egg) donors the same rights as adopted children, who have had rights to access their birth records since the law was changed in 1996.
Two days have been set aside for the appeal case, which continues today. The landmark lawsuit being heard Tuesday, the first of its kind in North America, was launched by B.C.-born Olivia Pratten, who now lives in Toronto.
The provincial government also argued that Pratten is seeking rights that are not afforded to all children, as children who are not adopted must rely on getting genetic or medical information from a parent.
For example, a single mom can choose whether or not to tell her child who the father is. The province also argued more information is available today about sperm donors than there was 30 years ago.
Greathead noted that a woman who wants to use donated sperm today can usually get information on a donor's health and temperament. The woman can also seek out a donor willing to be identified.
In an interview during a break in the court proceedings, Pratten noted donor information is only accessible by voluntary agreement. She wants to see laws in place that ensure records of gamete donors are maintained and are available to the children of those donors.
"There's a complete void in the law," said Pratten, 29. She said she's been told by legal experts to expect the case to go to the Supreme Court of Canada. Pratten said the case is not about opening up old files - hers have been destroyed - but about changing the law going forward.
Her lawyer, Joseph Arvay, told the court his client simply wants the same benefits that adopted children have under the province's laws. "I say the legislative scheme is discriminatory when it provides benefit to adoptive people ... because they have real needs [to know their genetic heritage and medical history] and deny benefits to those who have the same needs," argued Arvay.
The judges peppered Arvay with questions, noting the state has chosen not to create laws regulating the sphere of artificial reproduction. "It's [using a gamete donor] a matter of personal choice," noted Justice Mary Saunders.
In May 2011, B.C. Supreme Court Justice Elaine Adair struck down the Adoption Act on the grounds that it was discriminatory and therefore unconstitutional. She suspended the effect of the ruling for 15 months to allow the government time to draft legislation so it does not violate Canada's Charter of Rights and Freedoms.
The judge also granted a permanent injunction to prohibit the destruction and disposal of the records of gamete donors. Countries such as Sweden, Holland, the U.K. and parts of Australia no longer allow anonymous gamete donations.
Article: 20th February 2012 www.vancouversun.com
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