Individuals, who are conceived through the science of assisted reproductive technology and anonymous gamete donation, often do not know the identity of all of the individuals who have provided the necessary genetic material for their conception. Some of these people have a great desire to obtain this information. In a very small number of circumstances there is virtually no prospect of ascertaining this information. However, when this information is available, should it forever be denied to those with a desire to learn of his or her heritage?
A historical review of adoption cases provides some insight into how society dealt with the issue of secrecy. Where a birth parent or adoptee sought disclosure, the application nearly always ended in failure. The cases generally showed little empathy for the applicant. An attempt by Ontario to open confidential adoption records to provide identifying information, by amending the Vital Statistics Act , was found unconstitutional, in a decision that granted wider relief than sought by the applicants. In a more recent decision, again where the application for disclosure failed, the judge observed “[T]he emotional impediments of which the applicant complains are highly subjective and not borne out by the evidence as being the product of this legislative scheme.” An appeal to the Ontario Court of Appeal and an application for leave to the Supreme Court of Canada were unsuccessful.
However, a recent decision, in response to an application brought by a woman conceived using the sperm from an anonymous donor, has carefully examined the needs of donor offspring. The applicant successfully argued, by way of a constitutional challenge, that information about gamete donors should be recorded and preserved for donor offspring so that it could be made available to them. This decision recognized the legitimate needs of donor offspring.
As further background to this issue, in 1989, by Order in Council, the federal government established a Royal Commission to examine how reproductive technologies should be handled in Canada, and in 1993 their 1275 page report was issued. The Commission reported, inter alia, that secrecy surrounding donor insemination could give rise to conflict within the family. They also reported:
Surveys and research done for the Commission show that Canadians attach importance to having a genetic link between themselves and their children … Many aspects of Western and other cultures reflect as well as reinforce the importance of the genetic link between parent and child. As a result, many practitioners suggest that DI [donor insemination] be kept secret, even from the child, to preserve the appearance that the family does not differ from most other families. Some clinics even require couples to sign a form stating that they will never tell anyone about their DI procedure. At the same time, our society values honesty and openness in personal relationships. This results in great ambivalence for many individuals involved, as secrecy often implies something to be ashamed of.
The Commission, while noting that secrecy about donor insemination is fairly easy to maintain, reported that “[I]n the long run … secrecy places great strains on families” and that “[C]omission research showed that maintaining secrecy about the means of conception can be contrary to the best interests of the child”. The Commission also noted that “[A]doptive families used to be advised to keep this secret from the community and from the child; studies have since shown, however, that openness and honesty about adoption are healthier for all concerned.”
Does the present quest by children of gamete donor recipients to obtain information about their conception history bear any resemblance to the struggle Canadian women had in the past to receive a share in property accumulated during a marriage? One need only remember that in 1973 the majority of the Supreme Court of Canada, who were unwilling to use equitable principles to achieve justice, ruled that a hardworking farm wife, who had worked alongside her husband for 25 years, was not entitled on divorce to any share of the accumulated wealth. At that time Canadians had to rely on their legislatures, and not the courts, to remedy what most considered an obvious injustice.
*Written as part of the coursework for a Master of Laws Specializing in Family Law Degree
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