Donor Unknown: Assessing the Section 15 Rights of Donor-Conceived Offspring
Canadian Journal of Family Law, Vol 27, 247-295, 2011
49 Pages Posted: 19 Oct 2013
Date Written: 2011
Abstract
This paper explores the rights claims of donor-conceived offspring pursuant to section 15 of the Canadian Charter of Rights and Freedoms, particularly whether there is a right to know the identity of their biological progenitor. Part 1 outlines the history of donor anonymity in Canada. In Part 2 the authors consider the legal challenge to donor anonymity brought by Olivia Pratten. Part 3 is a discussion of the problematic analysis in a claim against British Columbia's Adoption Act under section 15 of the Charter, particularly Justice Adair's cursory comparison of adoptees and donor offspring. The authors suggest ways donor offspring claimants can address the shortcomings in Adair J's analysis. In Part 4, the authors assume a section 15 violation has occurred in the Pratton case and discuss difficulties the government will have in establishing that the exclusion of donor conceived offspring from the Adoption Act is a limit on the claimant's rights that is reasonable under section 1 of the Charter (reasonable limit demonstrably justified in a free and democratic society). The authors conclude that there is a reasonable likelihood that donor-conceived offspring will demonstrate that their secton 15 rights have been violated in a way that cannot be justified under section 1. Regardless of the outcome of the Pratten case, provincial legislatures across Canada should create a registry system for donor offspring that mirrors provincial adoption registries as soon as possible.
Keywords: rights, donor conceived offspring, section 15, Canadian Charter of Human Rights and Freedoms, biological progenitor, donor anonymity, Canada, Adoption Act, British Columbia, section 15, adoptees, section 1, Pratten case
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