Olivia Pratten v. Attorney General of British Columbia, et al.

(British Columbia) (Civil) (By Leave)




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Canadian Charter of Rights and Freedoms – Right to equality – Discrimination based on analogous ground of conception – Right to life, liberty and security of the person - Fundamental justice – Right of the offspring resulting from human reproductive technology to information about their biological history - Can a law that is generally ameliorative make distinctions on the basis of enumerated or analogous grounds which are not ameliorative and do not advance the law’s ameliorative purpose - Should s. 7 of the Charter be interpreted to encompass positive rights to life, liberty and security of the person – Charter ss. 1, 7, 15(1), 15(2), and 52.

The applicant was conceived in 1982 through an artificial insemination procedure. Her parents knew that the donor would remain anonymous. The doctor who performed the procedure no longer has any records about it, but informed the applicant that the donor was a Caucasian medical student of stocky build, brown hair, blue eyes and type “A” blood.

The applicant felt that part of her identity was missing. She worried about the implications of lacking information about her medical history, and wondered why rights that had been legislated for adoptees had not been extended to donor offspring. She commenced an action claiming that: i) by enacting legislation only for the benefit of adoptees, the legislature impermissibly discriminated against donor offspring, contrary to s. 15(1) of the Charter; and ii) the legislature’s failure to enact legislation to facilitate donor offspring obtaining information about their biological origins violates a free-standing positive right guaranteed by s. 7 of the Charter. The Supreme Court of British Columbia granted a declaration that the Adoption Act, R.S.B.C. 1996, c. 5 and portions of the regulation are of no force and effect, being an unjustifiable contravention of s. 15 of the Charter. The Court of Appeal for British Columbia granted the Crown’s appeal, dismissed the cross-appeal, and set aside the lower court order.

Lower Court Rulings

May 19, 2011
Supreme Court of British Columbia

S087449, 2011 BCSC 656
Declaration that the Adoption Act and portions of Adoption Regulation are of no force and effect, being an unjustifiable contravention of s. 15 of the Charter; Declaration suspended for 15 months; Permanent injunction granted prohibiting destruction, disposal, redaction or transfer of gamete donor records
November 27, 2012
Court of Appeal for British Columbia (Vancouver)

CA039124, 2012 BCCA 480
Appeal allowed; Cross-appeal dismissed; lower court order set aside