Monday, June 13, 2011

Reconceiving Discrimination in Canada

In a recent landmark case, Pratten v. British Columbia (Attorney General), the Supreme Court of British Columbia held that the province had discriminated against people conceived by donor gametes compared to people who had been adopted.
Olivia Pratten, the plaintiff, is a Canadian journalist whose mother used donor sperm in 1981. When Ms. Pratten sought more information about her donor from the physician who had inseminated her mother, she learned that the doctor was not required to maintain records for longer than six years – although he was willing to tell her that her donor was a healthy Caucasian medical student.
By contrast, British Columbia adoption law requires the retention of records concerning the medical and social history of the biological parents for at least 19 years, and allows the adopted person to learn the identity of the biological parents (with a few restrictions: if the adoptee was born before 1996, then the biological parent can veto disclosure, while for adoptees born after 1996, the biological parent can only file a no-contact order).
The court’s 100-plus page opinion held that parts of B.C.’s Adoption Act and Adoption Regulation violated section 15 of the Canadian Charter of Rights and Freedoms. Section 15 (1) of the Charter states: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” (Para. 218 of the opinion) The unconstitutional distinction, Ms. Pratten claimed, was between adopted and donor-conceived individuals based on their manner of conception.
As a prelude to its discussion of the legal arguments, the court reviewed the evidence presented at the trial, which included personal stories of donor-conceived offspring as well as expert testimony on the impact of anonymity. Based on this evidence, the court concluded: “assisted reproduction using an anonymous gamete donor is harmful to the child, and it is not in the best interests of donor offspring.” (Para. 215)
Although the Attorney General of British Columbia argued that the distinction was not between adoptees and donor-conceived offspring, but actually between adoptees and anyone not adopted (Para. 228), the court rejected that argument. Instead, it found that the legislation distinguished between those who are “disassociated from their biological parents” based on whether they were adopted or donor-conceived. “The circumstances of adoptees and those of donor offspring,” the court observed, “with regard to the need to know and have connection with one’s roots, are closely comparable.” (Para. 232)
The discriminatory provisions of the adoption legislation were invalidated, but the court suspended its judgment for 15 months so that the province could revise its laws. Although Ms. Pratten had requested that the court give guidance to the legislature on how to revise the system, the court declined to do so.
Although the opinion has received relatively little attention in the United States, there are some exceptions (here and here). Why might IntLawGrrls be interested in this opinion? There are numerous reasons. First, the equal protection arguments pursuant to the Canadian Charter are fascinating and can, perhaps, provide a model for other litigation concerning arbitrary classifications. Second, (as I have explored elsewhere), the promise of reproductive technologies — production of babies — now goes beyond a cure for infertility to challenge our conception of natural families by giving virtually anyone, regardless of age, gender, or sexual orientation, the ability to have a child. Finally, the politics of reproductive technology are deeply intertwined with the politics of reproductive rights. While, until recently, the history of reproductive rights has included relatively little attention to the need to enhance fertility, feminists are now exploring the multiple legal and policy issues posed by new reproductive technologies. Reproductive technologies promise to rescue women from two different sets of dilemmas: 1) being a coerced baby vessel versus engaging in voluntary motherhood; and 2) having a baby at a young, more fertile age versus establishing a career and deferring childbearing. Delivering on these promises, however, is the challenge.
(photo credit)

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