Men in British Columbia who might have altruistically donated sperm to an infertile or same-sex couple may wish to think twice in light of last month's landmark B.C. Supreme Court decision, (Pratten v. British Columbia 2011 BCSC (656)) which banned the practice of anonymous sperm donation, a first in North America.
Putative sperm donors have had it rough since 2004 when Canada's Assisted Human Reproductive Act made it illegal to pay for sperm. The obvious question was "why would anyone bother to donate sperm if they get nothing in return?"
The answer came quickly. They won't, and the immediate fall-out was the closure of 40 Canadian sperm banks, leaving only the Toronto Institute for Reproductive Medicine.
Active sperm donors in Canada today number 35, driving Canadian families to look to American sperm banks, where donors are still paid.
Eliminating anonymity for sperm donors may be the death knell for British Columbian donors and the possibility this new law will be adopted throughout Canada is far from remote, since the basis for the decision was that adopted children have the right to obtain information about their biological parents, but children born of artificial insemination do not. The court found the distinction was discriminatory and unconstitutional.
The court's decision in Pratten v. British Columbia refocuses the attention away from the rights of parents to avail themselves of reproductive technology, without consideration of the consequences for their offspring, to the recognition that children, whose biological fathers are sperm donors, must now take centre stage.
In her reasons, Honourable Madam Justice Elaine Adair referred to the ultimate control given to parents of donor offspring to decide what their child should know, when they should know about it and who might be involved in their child's life.
She noted that while anonymity may suit parents and donor, the evidence showed that these children suffer significant psychological and psychosocial difficulties brought on by health concerns, the lack of personal identity, and a sense of loss and incompleteness.
Plaintiff Olivia Pratten, a 29-year-old journalist from Toronto, asked the court for a declaration that certain sections of B.C.'s Adoption Act be of no force or effect and the disposal or destruction of sperm donor records in British Columbia be immediately prohibited.
Justice Adair granted the orders sought by Ms. Pratten, however, it was a bittersweet victory, since the doctor who had performed artificial insemination for her mother in 1982 had already destroyed his records in accordance with the law at the time.
As well, the court suspended the declaration for 15 months in order to allow time for B. C. lawmakers to revise the Adoption Act to address the discriminatory provisions and align new legislation with the court's Reasons.
Recently, the B.C. government announced it will appeal the ruling.
Donor insemination has come a long way since 1954 when the Supreme Court of Cook County in the United States ruled it was contrary to good morals and constituted adulterous behavior, while the Archbishop of Canterbury and the Pope proposed it be a criminal offence.
Today it is widely accepted and almost fashionable, as Hollywood's female celebrities become single moms and the movie studios churn out sperm donor genre movies.