Donor anonymity on the agenda for the January 2023 parentage committee meeting
February 3, 2023
BY Kevin Zakreski
BCLI’s Parentage Law Reform Project Committee recently considered donor anonymity.
BC doesn’t have provisions on information about donors in its parentage legislation under part 3 of the Family Law Act. But access to information about donors is an issue that has risen in prominence as more and more children are born from assisted reproduction. The committee decided that donor anonymity was sufficiently connected to parentage as to merit high-level consideration in this project.
The federal Assisted Human Reproduction Act was originally enacted with provisions to manage the collection of information about sperm, egg, and embryo donors. It also managed disclosure to donor-conceived people, which was only allowed with the donor’s consent. But the Supreme Court of Canada held that this legislation had impermissibly strayed into areas that Canada’s constitution assigns to the provinces to regulate, so it struck these provisions of Assisted Human Reproduction Act down. As a result, it became clear that any legislation on donor information in Canada would have to be enacted at the provincial level.
Most of Canada’s provinces and territories (including BC) have declined to exercise their authority to legislate on this topic. As a result, there’s something of a vacuum on donor information. This vacuum has mainly been filled by general legislation on personal information (such as BC’s Freedom of Information and Protection of Privacy Act and Personal Information Protection Act). These acts place an emphasis on personal privacy and generally require consent to the disclosure of personal information. So, in effect, by choosing not to legislate on information about donors, BC has passively adopted donor anonymity as its guiding principle in this area.
This approach is increasingly seen to be out of step with trends in legislation and social trends. According to a survey done in 2016 (PDF), 18 jurisdictions worldwide (including the state of Washington) have created legal frameworks that allow donor-conceived people to have access to identifying information about their donors. Social attitudes have also developed, dissipating much of the shame that surrounded infertility and assisted human reproduction and emphasizing the benefits that accrue to donor-conceived people from knowledge about their genetic origins. A similar change in social attitudes a generation ago led to a change in BC’s Adoption Act, enshrining openness in adoptions as the standard. Finally, technological advances—such as the widespread availability of affordable, direct-to-consumer DNA testing—has started to erode donor anonymity in practice.
The committee also considered reasons supporting donor anonymity in principle. It is a system that fully respects donors’ privacy interests. It may also respect the choices of intended parents in creating their families and avoid the perils of genetic essentialism. Finally, there were practical considerations, such as the costs of collecting and storing donor information and the risk that ending or limiting donor anonymity might reduce the number of people willing to be donors.
The goal of these discussions is to develop tentative recommendations to reform part 3 for a public consultation to be held later in the life of the project.