A Canadian judge has ruled that a law which allows anonymous sperm and egg donation to infertile couples is discriminatory on the grounds that the current law allows the release of information about biological parents to adopted children – but not to children of sperm or egg donors.

However, the ruling in the Supreme Court of the Canadian State of British Columbia has been suspended for 15 months to allow a new law to be drafted.

The ruling by B.C. Supreme Court Madam Justice Elaine Adair relates to the case of an Ontario woman who has been fighting for the right to information about her biological father, an anonymous sperm donor.

The case is similar to that of Dr Joanna Rose, who was conceived in the UK through sperm donation. Dr Rose took her case to the British courts, and ultimately obtained a ruling that sperm donor anonymity was in breach of her human rights.

In the 124-page ruling released yesterday, Justice Adair also ordered a permanent injunction banning the destruction of donor records.

She asked that a new law be passed by the legislature that complies with the Charter of Rights but declined to make any recommendations as to what the new law should say.

The plaintiff in the case, Toronto journalist Olivia Pratten, 29, had at trial asserted her right to to all “non-identifying” information on her biological father.

She claimed that for the B.C. government to deny her vital genetic, cultural, medical and social information, while it provided that same information to adopted children, was to violate her rights to equality and liberty and security.

Her mother, Shirley Pratten, had been unable to conceive a child with her husband..

In 1981, Dr. Gerald Korn, a Vancouver physician, administered an insemination procedure on the mother using the sperm of an anonymous donor and Olivia was born in B.C. on March 24, 1982.

When she turned 19, Olivia Pratten visited Dr Korn, who provided some information about the sperm donor but declined to give his identity.

He told her that her father was a Caucasian medical student with a stocky build, brown hair, blue eyes and type ‘A’ blood.

According to court documents, Korn told her that after his retirement that the records of the donor would be provided to the B.C. College of Physicians and Surgeons and stored for two years before being destroyed.

After she learned that Korn had retired, in 2003, Pratten went to the College, which told her that they didn’t have any records.

The college told her that Korn was only required to keep patient records for six years, after which he could destroy them, says a document filed in B.C. Supreme Court by Pratten.

Pratten experienced “anxiety and stress” about her inability to learn anything about her biological father.

Meanwhile, a leading family law court judge in the UK says that the High Court there will recognise some cases of commercial surrogacy, which is illegal in the UK, to avoid children being left “parentless and stateless”.

Mr Justice Hedley was speaking to the BBC after a ruling he made in which he allowed a couple to keep their surrogate child, identified as LJ.
 
The baby was born in Ukraine. Under the law there, the British couple were recognised as the child’s parents, but under British law, the Ukrainian surrogate parent had parental rights, leaving the child in a legal void.

Mr Justice Hedley said that, under the law, the child’s welfare was paramount, and if a parental order was not made, the child would be left “parentless and stateless”.

Campaigners fear the practice will lead to children being regarded as commodities, to be bought and sold.

Andrea Williams, director of the Christian Legal Centre, said: ‘Surrogacy is all about adults’ desires, adults’ wants, adults’ needs, not about the needs of the child.

‘We have to learn that as a society we can’t always get what we want. We can’t simply have whatever we want by whatever means even if science allows it.’