ADOPTION CORNER - LANDMARK RULING: DONOR OFFSPRING WILL HAVE THE SAME RIGHTS AS ADOPTEES by Wendy Rowney (Fall 2011)

ADOPTION CORNER

LANDMARK RULING: DONOR OFFSPRING WILL HAVE THE SAME RIGHTS AS ADOPTEES
by Wendy Rowney

A landmark B.C. Supreme Court ruling has granted donor-conceived adults the same rights to information about themselves as adoptees already have. Justice Elaine Adair's ruling on May 19, 2011 came in response to a case brought by Olivia Pratten. The 29-year-old woman sought background information about her biological father, who donated sperm at a B.C. clinic. The lawsuit was the first of its kind in North America. Justice Adair ruled that B.C.’s Adoption Act and its regulations were unconstitutional, but she suspended the ruling for 15 months to allow B.C. to draft new legislation amending the Act.

The Canadian adoption community has supported this case from the start. When Pratten decided that she had the same rights to information as adoptees and went to court to prove it, the Adoption Council of Canada (ACC) and a myriad of adoption groups across the country offered their help.

The adoption community has long known that depriving individuals of intimate knowledge about themselves can be damaging. In an affidavit written in support of the case, Sandra Scarth, president of the ACC and an adoptive parent, stated that “donor offspring have many of the same social, psychological and medical needs for background information about their genetic parents as do adopted people.” As an adoptee myself, I think she is right.

When I meet with donor-conceived adults, talk often turns to the similarities in our respective situations. We are all missing a good portion of our medical histories and know what it is like to respond to a doctor’s questions about inherited conditions with “I don’t know.” We share a slightly vague definition of family; we love the parents whom we know but also recognize that there are other people somewhere in the world to whom we are connected. We often call them family as well. We recognize in one another a feeling of loss, of angst about that loss, and a deep desire to know who we are and where we come from. It is clear to adoptees and the donor-conceived that we are all part of the same community. Justice Adair thought so too.

In her ruling, Adair recognized “that donor offspring share with adoptees many of the same…needs for information about biological parents, and that, even if well-intentioned, serious harm can be caused by cutting off a child from his or her biological roots.” The analogy between the two groups is, in the end, what won the case.

As a consequence of this ruling, the B.C. government now needs to amend its adoption law to allow donor-conceived adults the same rights to information as adoptees in that province have. People adopted after 1996 in British Columbia have an absolute right to their original birth certificates once they become adults. On the document, they will find their own name at birth, the name of their original mother, and sometimes the name of their original father. People adopted before 1996 can access the same document but their birth parents can choose to limit the information the adoptee receives or to curtail contact by filing either a disclosure or a contact veto. Despite the general perception in society that birth parents fear being located by their adult children, fewer that 5% of birth parents file these vetoes. Overwhelmingly, original parents do want to be found and hope to play a part in the lives of the individuals they surrendered to adoption many years earlier.

No one is certain yet how the government of British Columbia will rework the law to make it applicable to the donor-conceived. Unlike adoptees, donor offspring have only one birth certificate and it names their social parents, the people who raised or are raising them. Adoptees have two birth certificates: one created when they were born, which names their birth parents, and one created when they were adopted, naming their adoptive parents and providing them with a post-adoption name.

Without the same original birth certificate as the one adoptees have, people conceived through donation have no official record of their genetic parent or parents. The only place the name of their genetic parent or parents (if donated eggs and sperm are both involved) appears is in the files of the doctor who provided fertility treatments to a donor offspring's social parents. In the past, Canadian law has allowed doctors to destroy these records, as they do all medical records, after a certain period of time. The records are not housed together, as are the original birth certificates of adoptees, so it is far more difficult to provide this information to donor-conceived adults.

Nonetheless, it is the right thing to do. It seems likely that British Columbia will decide to provide this information unequivocally to children conceived with donor gametes, once the new law is in place. Individuals already conceived from donor sperm and eggs, however, including Pratten, will probably be out of luck.

Dr. Gerald Korn, whose clinic Pratten's parents visited in 1981 in order to become pregnant, claims that he has destroyed any record of her genetic father. When she first visited the clinic at 19, Korn did provide Pratten with some information about her father: he was Caucasian with brown hair, blue eyes, a stocky build, and type “A” blood. When you are looking for your history, that’s not much to go on.

I spent the first 25 years of my life with a similar list of characteristics as the only things I knew about my first mother. She was Irish, had brown hair, liked drama, and was in high school when she became pregnant with me. It did not answer many questions for me - yet it is more than Pratten knows about her genetic father.

Like me, Pratten grew up in a home where she felt wanted and loved. Like me, she learned at an early age that she was not related to both of the parents she loved. Like me, she grew up feeling secure in who she was, but longing to know where she came from. Unlike me, she’ll probably never know.

I met my original family almost 15 years ago. Knowing them has changed my life. Since I could see myself in them, I felt more confident about myself and the person I was. Not only are my first mother and I physically similar, we share a worldview and sense of humour. It turns out we have a lot more in common than brown hair and a love of theatre. When children grow up in a family in which everyone is connected by genetic ties, they learn this information about themselves naturally. They see themselves mirrored in the individuals around them, and this creates a sense of belonging and security. Social parents can provide security and love, of course, but it is often not enough. Just as many people feel more rooted by studying their ancestry and genealogy, adopted and donor-conceived people need to feel connected to a past that is theirs alone.

I was once asked why I just couldn’t pretend that I shared a genealogy with my adoptive parents. It would be simpler to do that - but it wouldn’t be true. We can pretend many things, but we can’t pretend a medical, social, ethnic, or genetic history for ourselves. These things just are. They aren’t tradable. We inherit them when we are born from the people who came before us.

If genetics truly were unimportant, parents would not return to the same clinic in order to use the same gamete provider to create a second child for their family. No one at family gatherings would remark how much a certain child resembles a deceased family member. We would not recognize truisms in our culture such as, “The apple doesn’t fall far from the tree.” Needing to know “the tree” that our apple fell from does not make adopted and donor-conceived adults selfish or neurotic; it makes us human.

Many people will, and do, argue that ending donor anonymity will discourage potential donors from providing their sperm and eggs to the childless. While the gamete supply really has nothing to do with recognizing rights, it is interesting to note that these people are completely wrong. Sweden ended anonymity over 20 years ago. They now have more sperm donors than they did in the anonymous era. Statistics from the United Kingdom, Australia, New Zealand, and the Netherlands show the same things; ending anonymity does not end gamete donation.

It is possible that donors want to know their genetic children. The Sperm Bank of California has, for decades, given their sperm providers the choice of anonymity. The vast majority, 80% in fact, choose to be known to their children when the latter become adults. Maybe this notion that donors (or vendors) of gametes want to be anonymous is a myth, just as the belief that birthmothers move on with their lives after they place a baby for adoption and want nothing to do with its adult version is fiction. Maybe the “need to know” works both ways: adoptees and the donor-conceived want to know their genetic parents, while gamete providers and birth parents want to know their genetic children. Of course, it is hard to know this for certain, because so few people are studying the issue. Maybe it is just easier to believe the myths than find out the truth.

While this option may be tempting, it is not comforting for the individuals whose lives these myths most impact. None of the donor-conceived or adopted adults I know are looking for another parent. There are people in our lives who fill that role. What we are looking for is information about ourselves. We know we have no right to a relationship with our genetic parents. We do have a right to know who they are, for their histories are ours, too.

Olivia Pratten and I have always known we have a right to know who we are. Now the country knows that as well.

About the author
Wendy Rowney is an adopted adult and a board member of both the Adoption Council of Canada and the American Adoption Congress.