FIRST EVER CLASS ACTION LAWSUIT FILED BY SPERM DONOR OFFSPRING IN CANADA
COURT ISSUES INJUNCTION TO PREVENT THE DESTRUCTION OF RECORDS PENDING THE HEARING OF THE LAWSUIT
A class action lawsuit was filed on October 24, 2008, by Olivia Pratten, the representative plaintiff, on behalf of all people in the province of BC conceived via anonymous sperm, egg and embryo donation or what is called “gamete donation”.
It is believed to be the first time a case of this sort has been brought forward by donor offspring in Canada.
The lawsuit is against the Attorney General of British Columbia and the College of Physicians and Surgeons of British Columbia.
Today the British Columbia Supreme Court issued an injunction which orders all persons who have records of gamete donation not to destroy such records or redact them or transfer them out of the Province pending a further hearing in the Supreme Court, at which time Ms. Pratten on behalf of the class will seek a more permanent injunction to be in force until the trial of this lawsuit is heard and decided. For further details of this injunction the public is urged to refer to www.arvayfinlay.com.
The lawsuit claims that the present law discriminates against persons who were conceived as a result of gamete donation. By contrast, adopted children have, by law, certain legal rights and opportunities to know about their biological parents that children conceived by way of gamete donation simply do not enjoy. The lawsuit is based on the guarantees of equality and security of the person in the Canadian Charter of Rights and Freedoms.
The lawsuit seeks the immediate and ultimately the permanent protection and preservation of all files related to the practice of gamete donation in the province of British Columbia. Currently all information from health to identifying information about the gamete donor, can be destroyed at whim by the practicing physician after six years. One woman included in the suit already had her files destroyed.
“Farmers have kept better records on the artificial insemination of cattle than the physicians in BC have kept on people like myself,” said Pratten, now 26 years old.
In 2001, she was told that her biological father was healthy and that a “verbal medical check had been done.” The physician, Dr. Korn, gave the minimal information of height, weight and hair color on a piece of hotel stationery.
“The issue of protecting the files and having my right to access their full and complete information is one of principle to me. I’m tired of having to explain or defend my desire and my right to know this information,” said Pratten.
Olivia, along with others in the suit, have attempted to gain information and access of vital health information from various physicians in BC who practiced donor insemination. No one has managed to obtain information and many have been told that the files are destroyed or will be destroyed if further action was taken.
“It is completely unacceptable, if not outrageous that the medical establishment threatens to destroy medical files,” said Pratten.
In 2004, she was told by the Deputy Registrar of Ethics at the College that her health files could be “shredded and incinerated” after six years from the last medical contact with the patient. In this case, the patient was not Olivia, but her mother Shirley, who received the insemination’s.
Ms. Pratten expects a positive response from at least some of the men who were sperm donors at Dr. Korn’s clinic. One such donor is Dwight Jones at Dr. Korn’s clinic during the 1970s and 1980s who said, “It’s our obligation to the offspring, and the perception that most donors are seeking anonymity is not correct and certainly no reason to withhold their content decades later.”
“Every Canadian adult has the right to truthful information about his or her origins. We all need to know who we are and where we come from. It does not matter whether we are adopted or conceived by gamete donation; we all have the right to this information. The Adoption Council of Canada supports the right of all adults conceived by gamete donation to truthful information about their origins,” said Wendy Rowney, vice president of the Adoption Council of Canada.
“Our clients seek information that might be said to be of the most basic and fundamental to the human condition. Knowing about one’s biological origin and thus their biological parent’s medical history, may be vital to our client’s present and future health. Nor is it any longer beyond the realm of the probable that this information may be needed to ensure that they do not inadvertently marry one of their siblings. But perhaps, most important, is that knowing about one’s ancestry, one’s very roots, is central to a person’s self identity,” says Joseph Arvay, who with Sean Hern, is counsel for Ms. Pratten and the class once the action is certified as a class proceeding.
On October 28, 2008, Chief Justice Donald Brenner of the British Columbia Supreme Court issued an injunction directed to all persons in BC, whether medical personnel or otherwise, preventing the destruction or transfer of any records that have been created or maintained by persons who administered artificial insemination.