VANCOUVER - A woman who wanted to know the identity of her sperm-donor father is taking her case to Canada's top court after the B.C. Court of Appeal threw out an earlier decision that sided with her.
Olivia Pratten wanted offspring like herself to be treated the same as people who are adopted and argued that the B.C. government should change its laws accordingly.
But the appeal court ruled Tuesday there is no legal right for offspring to know their past and providing such information would amount to state intrusion into many people's lives.
"It's very disappointing," Pratten said of the appeal court ruling.
"All we were asking for is the same benefits of adopted people. They've basically said, `No, you can't have that.' And they've basically said that it's OK for the government to discriminate. It's failing to protect the health and safety of donor-conceived people, that's what this court has done. We'll be appealing it to the Supreme Court of Canada."
The appeal court concluded that contrary to Pratten's argument, it is not her constitutional right to know her biological past.
"There are many non-donor offspring who do not know their family history or the identity of their biological father because of decisions taken by others, or because of the circumstances of their conception," Justice David Frankel said in the written ruling on behalf of the three judges.
"However desirable it may be that persons have access to information about their biological origins, Ms. Pratten has not established that such access has been recognized as so `fundamental' that it is entitled to independent constitutionally protected status under the Charter," the ruling said.
In May 2011, a B.C. Supreme Court judge agreed with Pratten, giving the province 15 months to amend its Adoption Act, saying people who are deprived of their genetic backgrounds suffer psychological harm.
Judge Elaine Adair also ordered a permanent injunction against the destruction of donor records, which can be disposed of in six years, but the B.C. government appealed the ruling.
In February, a lawyer for the Attorney General's Ministry told the appeal court that adoption laws don't apply to people who were born using donated sperm or eggs if they want to learn the identity of a biological parent.
Some information collected about biological parents by adoption agencies and the government can be accessed when those children turn 19, unless the parents don't want it disclosed.
Pratten, who now lives in Toronto, was born in Nanaimo, B.C., in 1982 using sperm from an anonymous donor, and her parents knew the donor's identity would be shielded.
She spent a decade trying to learn her biological father's identity, but her parents' Vancouver fertility specialist destroyed the records in keeping with rules of the B.C. College of Physicians and Surgeons, which was also named Pratten's lawsuit.
Dr. George Korn, who retired in 2004, gave her contradictory information, first saying the donor was six feet tall and had brown eyes and later said he was 5 feet 10 inches tall and had green eyes.
Pratten, who started court proceedings in 2008, said she was told by the B.C. College of Physicians and Surgeons in 2004 that the sperm donor's records could have been shredded or incinerated and she therefore couldn't get any information about him.
"Not only me but other people have contacted them over the years," she said. "Everyone's just turned around and said it's not our problem, it's not our jurisdiction and that was one of the big issues of the case.
"I'm saying publicly that they're useless," she said of the college.
"I don't want them to protect these files because they've failed at doing it and they need to be held in Vital Statistics or somewhere else, which is why we wanted to be included in the adoption legislation because that's the legal framework to provide protection of files."
The B.C. College of Physicians and Surgeons did not return calls for an interview.
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<strong>1. Your fertility is mostly determined by genetics, which influences how many eggs you are born with. </strong> Doctors believe that the number of eggs you have at birth determines the length of time you will remain fertile. At birth, women have about two million eggs in their ovaries. For every egg ovulated during your reproductive life, about 1,000 eggs undergo programmed cell death. Other things, such as smoking cigarettes and certain types of chemotherapy, can accelerate egg cell death and promote an earlier menopause.
<strong>2. Regular menstrual cycles are a sign of regular ovulation.</strong> Most women have regular cycles lasting between 24 and 35 days. This is usually a sign of regular, predictable ovulation. Women who do not ovulate regularly have irregular menstrual cycles. Those who do not ovulate at all may have a genetic condition called polycystic ovarian syndrome (PCOS).
<strong>3. Basal temperature charting does not predict ovulation.</strong> An older method of tracking ovulation involves taking your oral body temperature each morning before getting out of bed. This is called basal body temperature. This method is used to spot a rise in basal temperature, which is a sign that progesterone is being produced. The main problem with using this method is that your temperature rises after ovulation has already occurred. This makes it more difficult to time intercourse at an optimal time for conception. A better method is to use over-the-counter urine ovulation predictor test kits such as Clearblue Easy. These kits test for the hormone that prompts ovulation, which is called luteinizing hormone (LH).
<strong>4. Most women with blocked fallopian tubes are completely unaware they may have had a prior pelvic infection.</strong> About 10 percent of infertility cases are due to tubal disease, either complete blockage or pelvic scarring causing tubal malfunction. One major cause of tubal disease is a prior pelvic infection from a sexually transmitted disease such as chlamydia. These infections can cause so few symptoms that you may be completely unaware your tubes are affected. This is why fertility physicians will order a dye test of the tubes, called a hysterosalpingogram (HSG), if you have been trying and failing to conceive for 6 months or longer.
<strong>5. In most cases, stress does not cause infertility.</strong> Except in rare cases of extreme physical or emotional distress, women will keep ovulating regularly. Conceiving while on vacation is likely less about relaxation than about coincidence and good timing of sex.
<strong>6. By age 44, most women are infertile, even if they are still ovulating regularly.</strong> Even with significant fertility treatment, rates of conception are very low after age 43. Most women who conceive in their mid-40's with fertility treatment are using donated eggs from younger women.
<strong>7. Having fathered a pregnancy in the past does not guarantee fertility.</strong> Sperm counts can change quite a bit with time, so never assume that a prior pregnancy guarantees fertile sperm. Obtaining a semen analysis is the only way to be sure the sperm are still healthy!
<strong>8. For the most part, diet has little or nothing to do with fertility.</strong> Despite popular press, there is little scientific data showing that a particular diet or food promotes fertility. One limited study did suggest a Mediterranean diet with olive oil, fish and legumes may help promote fertility.
<strong>9. Vitamin D may improve results of fertility treatments.</strong> A recent study from the University of Southern California suggested that women who were undergoing fertility treatments, but had low vitamin D levels, might have lower rates of conception. This vitamin is also essential during pregnancy. At Pacific Fertility Center, we recommend our patients take 2,000-4,000 IU per day.
<strong>10. Being either underweight or overweight is clearly linked with lowered levels of fertility.</strong> The evidence in recent years is that obesity is clearly linked with a longer time to conception. Having a body mass index less than 18 or over 32 is associated with problems ovulating and conceiving, as well as problems during pregnancy.