No Constitutional Right To “Know One’s Sperm Donor

 

unknown sperm donorThe Supreme Court of Canada ruled there is no constitutional right to know one’s past by obtaining information on your own past from your sperm donor.

 

Pratten v Attorney General of BC and College of Physicians and Surgeons of BC, the Supreme Court of Canada dismissed an appeal from the BC Court of Appeal found at 2012 BCCA 480,that had denied an adopted child the right to “learn her background” by gaining access to the name of the anonymous sperm donor that impregnated her mother.

The child and appellant argued the Charter of RIghts, that it was a constitutional right to know such, but both appeal courts disagreed.Despite the fact that the records of her biological father had long been destroyed, an action was commenced for a declaration that by enacting legislation that allows adopted children to find out their natural parents, the laws discriminated against those born from a sperm donor.

The Court of Appeal stated that just becasue a particular section of a statute or regulation is held to be of no force and effect does not mean that related provisions are also constitutionally unsound.

It is significant that the right “to know one’s past” was found not to be a principle of fundamental justice within s. 7 of the Charter in Marchand v. Ontario, 2007 ONCA 787, 288 D.L.R. (4th) 762, affg (2006), 81 O.R. (3d) 172 (S.C.J.), leave refd [2008] 1 S.C.R. ix (sub nom. Infant Number 10968). In that case, Ms. Marchand, an adoptee, wanted to know the identity of her biological father. The man named by Ms. Marchand’s biological mother as her father on the original birth registration denied paternity and refused to consent to the disclosure of his name. In an effort to gain access to that information, Ms. Marchand challenged the legislation denying her access on the basis that it violated her rights to liberty and security of the person under s. 7 of the Charter. That challenge was rejected by a judge of the Ontario Superior Court of Justice and Ms. Marchand appealed. In dismissing that appeal, the Court of Appeal (at para. 12) agreed with the following statement by the judge that the denial of access did not engage a principle of fundamental justice:

A principle of fundamental justice must fulfil the following criteria:

It must be a legal principle that provides meaningful content for the s. 7 guarantee while avoiding adjudication of public policy matters;
There must be a significant societal consensus that the principle is “vital or fundamental to our societal notion of justice”; and
The principle must be capable of being identified with precision and applied to situations in a manner that yields predictable results.
(See: Canadian Foundation for Children at paras. 8-11 and R. v. Malmo-Levine, [2003] 3 S.C.R. 571 at para. 113.)

The unconditional disclosure of identifying personal information of third parties, even if they are birth parents of the claimant, without regard to the privacy and confidentiality interests of the persons identified and without regard to any serious harm that might result from disclosure, fails to meet the above criteria. It is not a principle that is vital or fundamental to our societal notion of justice. It is instead a proposition of public policy that continues to be vigorously debated.

[Emphasis added.]

See also: Cheskes v. Ontario (Attorney General) (2007), 288 D.L.R. (4th) 449 at para. 116 (Ont. S.C.J.).

[53] In support of her contention that the right to know one’s biological origins is a fundamental constitutional right, Ms. Pratten cites Rose v. Secretary of State for Health, [2002] EWHC 1593 (Admin), [2002] 3 FCR 731. In that case, two offspring of anonymous donors brought an action against the Secretary of State challenging his failure to promulgate regulations that would facilitate their obtaining information about their biological fathers. In a preliminary ruling, a judge of the Queen’s Bench Division held that Art. 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, 213 U.N.T.S. 222 [E.C.H.R.] was engaged because it encompasses the right of an individual to obtain information about his or her biological origins. Article 8 provides:

Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
[Emphasis added.]

However, the judge did not decide whether the Secretary of State’s inaction constituted a violation of Art. 8.

[54] What is noteworthy about the decision in Rose is that it does not rest on Art. 5(1) of the E.C.H.R. which partially mirrors s. 7 of the Charter. Article 5(1) reads, in part:

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:…

[55] Not only is Rose based on wording that has no equivalent in the Charter, it is based on a legal instrument that has no application to Canada. It is a regional treaty, entered into by the member states of the Council of Europe. The decision cannot be read as providing support for the proposition that the right “to know one’s past” is generally accepted as being of fundamental importance.

[56] Ms. Pratten also relies on the United Nations Convention on the Rights of the Child, November 20,1989, 1577 U.N.T.S. 3 [C.R.C.], which Canada has ratified. Article 8 of the C.R.C. reads:

States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.
[57] I do not read this provision as imposing on States Parties an obligation to provide mechanisms to enable donor offspring to obtain the personal information of third parties who are not their legal parents. Parenthetically, I note that British Columbia, which constitutionally has legislative jurisdiction over adoption, is not a party to the C.R.C.

[58] The history of Art. 8 is noteworthy. Its inclusion in the C.R.C. was proposed by a delegate from Argentina to deal with children who had been abducted from their parents and later renamed and registered as the children of either the abductors or third parties: Summary Record of the 54th Meeting of the Commission on Human Rights, U.N. Document E/CN.4/1985/SR.54.

[59] That neither Art. 8 nor any other provisions of the C.R.C. is viewed internationally as supporting the right “to know one’s past” is further evinced by the observations of the United Nations Committee on Human Rights of the Child. That Committee is an independent body that monitors the implementation of the C.R.C. by States Parties. In its “Concluding observations” issued on October 9, 2002, in response to a report submitted by the United Kingdom, the Committee stated (U.N. Document CRC/C/15/Add.188):

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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