Tuesday, July 05, 2011
British Columbia Government Launches Last Minute Appeal Against Human Rights
On Friday 17th June, the government of British Columbia filed its appeal against the decision of Supreme Court Justice Elaine Adair which ended donor anonymity in the province of British Columbia. As part of her decision, Justice Adair asserted that the BC Adoption Act (which also covers the area of donor conception) was unconstitutional as it treated donor conceived people differently to adopted people and that “serious harm can be caused by cutting off a child from his or her biological roots.” This appeal was made shortly before the 30 day window was to expire and deals a traumatic psychological blow to Olivia Pratten and other donor conceived people in British Columbia.
Appealing against what is in effect a landmark human rights ruling is a contentious decision and one which should only ever be undertaken with the greatest of care and necessity. Contrastingly in a very similar situation, the UK also banned donor anonymity through the courts (Rose case). The defendant in this instance, the Secretary of State for Health and the Human Fertilisation and Embryology Authority did not appeal the verdict. British Columbia’s Attorney General Barry Penner states that the decision was made “because it raises important constitutional issues that extend beyond this particular case”. On this point it would be easy to argue that any judicial decisions which extend to the Constitution need to be appropriately addressed through the proper legal avenues.
However, what does it say about a government and its own Constitution whereby an appeal effectively makes the statement that donor conceived people do not have the same basic human rights as adoptees do in that province let alone those people conceived through more traditional means? As was already assessed in the case, the deprivation of familial information in the form of donor identifying information was discriminatory under the Canadian Charter of Rights and Freedoms which operates as the legal mechanism within the Constitution to ensure that rights of Candian’s are not infringed upon by its own government and those of its provinces. If it was a matter for addressing the constitutional validity of certain components of the Adoption Act then a more appropriate and cost effective mechanism for the government to create this change would be to simply amend the legislation.
While it would be dubious to assess the motives for this appeal based on the fact an appeal was made against the awarding of human rights, additional comments by Penner create further cause for concern. Penner remarks; “we are concerned that it could limit the government’s ability to provide programs that respond in tailored ways to particular groups of individuals”. The only program that is relevant here is that of providing donor conception services to the infertile which are his ‘particular group of individuals’. The concern would then be that by removing anonymity the ability to provide treatment to the infertile with donated gametes would then suffer or the number of treatments available would diminish due to a reduction in donor numbers. It is unclear why this constant fallacy is continually being pushed and from where it emanates.
For instance the HFEA reports that since anonymity was banned in 2005, donor numbers have increased. In fact the numbers of new sperm donors have increased from 251 to 396, and egg donors from 921 to 1150 in the period 2005-2008 as represented on the HFEA’s own website.
In an extreme example, South Australia, the only state in Australia which had anonymity protected by and enshrined in legislation, and then had anonymity effectively ended through the guidelines of the National Health and Medical Research Council, experienced a spike of increased donors of 6.7 fold above the previous year once donations were no longer anonymous.
While it may be cynical to think so, it is not hard to draw the conclusion that this misconception of a reduction in donor numbers is propagated by the clinics themselves. With a reproductive treatment industry totalling $3-4 billion dollars a year in the US alone, it is perhaps a little easy to come to the conclusion that such scaremongering is financially driven.
Penner’s second comment above also suggests that people undergoing fertility treatment using donated gametes should have the choice of selecting anonymous or identifiable donors. The ‘tailoring’ of programs to certain groups of individuals as he puts it. Such a stance ignores the mounting evidence in the literature that donor offspring wish to know who their progenitors are (Jadva et al. 2010, Mahlstedt et al. 2009), and that keeping this information from them can potentially be harmful (McWhinnie 2000, Turner and Coyle 2000). It fails to recognise the similarities between adoption and donor conception from the perspective of fragmenting kinship with resultant outcomes.
Attempts to remove hard won human rights of the donor conceived, is an attempt to ensure that the desires of adults continue to override the welfare of the most vulnerable party. Ethically the most vulnerable should always hold paramountcy, yet for British Columbia, at least in the eyes of the Attorney General it appears, they should remain subservient.
While the government of British Columbia has every right to appeal the decision of Justice Adair and to ensure that the law within that province conforms to the Constitution as well as the Charter of Rights and Freedoms, one wonders what message this appeal sends to the donor conceived such as Olivia Pratten. Perhaps the issue should have never reached the courts and the welfare of offspring deemed important enough to legislate change and implement programs based on ethical principles rather than legal argument.
On the positive side for the donor conceived people of British Columbia and even Canada is that if the appeals go high enough, and if the decision of Adair is upheld, then donor anonymity will have ended not just in British Columbia but all provinces. Thereby acknowledging that the Donated Generation has the same rights as all of their follow Candians and they will no longer be discriminated against based on their method of conception.
Honourable Madam Justice Elaine Adair. Reasons for Judgement. Pratten v Attorney General of British Columbia and College of Physicians and Surgeons of British Columbia. 2011 BCSC 656.
Jadva, V., T. Freeman, W. Kramer, and S. Golombok. 2010. Experiences of offspring searching for and contacting their donor siblings and donor. Reproductive Biomedicine Online 20(4): 523-32.
Mahlstedt P. P., K. Labounty, and W. T. Kennedy. 2009.The views of adult offspring of sperm donation: essential feedback for the development of ethical guidelines within the practice of assisted reproductive technology in the United States. Fertility and Sterility 93(7): 2236-46.
McWhinnie, A. 2000. Families from assisted conception: ethical and psychological issues. Human Fertility (Cambridge) 3(1): 13-9.
Rose and Another v. Secretary of State for Health and Human Fertilisation and
Embryology Authority, Case no: CO/3802/01 (High Court of Justice Queen's
Bench Division Administrative Court 2002).
Scheib, J. E., M. Riordan, and S. Rubin. 2005. Adolescents with open identity sperm donors: reports from 12-17 year olds. Human Reproduction 20(1): 239-52.
Turner, A. J., and A. Coyle. 2000. What does it mean to be a donor offspring? The identity experiences of adults conceived by donor insemination and the implications for counselling and therapy. Human Reproduction 15(9): 2041-51.