The BC Court of Appeal delivered an important decision this week, holding that the Charter does not protect the right of persons conceived with donor sperm (or egg) to “know their past”―that is, to know the identity and medical and social history of the donors whose biological offspring they are. The decision is Pratten v. British Columbia (Attorney General), 2012 BCCA 480. The plaintiff argued that legislation which allowed people who had been adopted to obtain this information, without making similar provision for “donor offspring” such as the plaintiff, was a violation of her equality rights protected by s. 15(1) of the Charter. She also argued that the “right to know one’s past” was protected by s. 7 of the Charter. The Court of Appeal rejected both these claims.
The ruling has been criticized: over at The Court, Nikita Rathwell blames the s. 7 holding on the courts’ “usual timidity,” while writing in the Globe and Mail, Juliet Guichon, a professor of medicine at the University of Calgary, calls it “an ignoble step backward.” But as a matter of law, I think it is exactly right; indeed, this case demonstrates the limitations of judicial review as a means of changing social policy.
The trial judge found that donor offspring face a number of problems due to not knowing the medical history of their biological parents. It is more difficult and takes longer to diagnose medical conditions from which they suffer. And the gaps in their identity and history cause them anxiety, frustration, and other psychological difficulties. They also “commonly, and legitimately, fear inadvertent consanguinity. ” (par. 17). Their situation is essentially similar to that of adoptees. These findings were not challenged on appeal. The government’s argument was rather that they were not constitutionally problematic.
The first issue is that of s. 15 of the Charter. S. 15, on the one hand, prohibits discrimination on the basis of a number grounds, such as race, age, gender, etc., and other similar ones (subs. 15(1)). On the other, it explicitly authorizes “any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups” (subs. 15(2)). And as the Supreme Court held in R. v. Kapp, 2008 SCC 41,  2 S.C.R. 483, at par. 41, subs. 15(2) means that
[a] program does not violate the s. 15 equality guarantee if the government can demonstrate that: (1) the program has an ameliorative or remedial purpose; and (2) the program targets a disadvantaged group identified by the enumerated or analogous grounds.
The parties agreed, as did the Court, at least for the sake of argument, that “manner of conception” of an individual is one of those similar and thus protected grounds. But while the plaintiff contended that allowing adoptees but not donor offspring to access information about their biological parents amounted to discrimination on the basis of their manner of conception, the government argued that the provisions it had made for adoptees were designed to remedy the disadvantages of adoptees, who, as the trial judge found, “ha[d] historically, if not currently, been subject to negative social characterization” (par. 38). The Court accepted this claim; in its view, “[t]he purpose of the impugned provisions is to remedy the disadvantages created by the state-sanctioned dissociation of adoptees from their biological parents” (par. 37). Under the Kapp test, this is enough to save the law from scrutiny under subs. 15(1). The Supreme Court clarified that test in Alberta (Aboriginal Affairs and Northern Development) v. Cunningham,  2 S.C.R. 670, 2011 SCC 37, holding that subs. 15(2) protected only measures that “in a real sense serve or advance the ameliorative goal” pursued by the government. The plaintiff argued that the distinction between adoptees and donor offspring did not serve such a purpose. But the Court rejected this submission. In its view, the disadvantages the adoptees faced and which the legislature sought to redressed resulted from the change in their legal relationship with the biological and adoptive parents, and the legislation was tailored to address that problem. Since donor offspring did not face it―they never had a legal relationship with their donor biological parents to begin with―their exclusion from the scope of the legislation is justified.
I think that’s the right outcome. There are real differences in the way relationships between adoptees and donor offspring and their biological parents arise and are severed; in particular, the state intervenes in the relationship between the adoptee and his or her biological parents in the way it does not in the relationship of donors with their offspring. It is not obvious that these groups must be treated identically, and s. 15(2), as the Supreme Court held in Cunningham, permits differences in the remedial measures offered to various disadvantaged groups.
The second issue in Pratten was the existence of a “right to know one’s past” under s. 7 of the Charter. The trial court did not accept the plaintiff’s position on this point; nor did the Court of Appeal. The plaintiff argued that s. 7 should be expanded not only to prevent deprivations of life, liberty, or security of the person effected by the state, but also to require the state to provide these benefits―a proposition which the Supreme Court rejected, albeit narrowly, in Gosselin v. Quebec (Attorney General), 2002 SCC 84,  4 S.C.R. 429. The Court refuses to expand s. 7 in this way. It points out that “the right to know one’s past” is not generally regarded as fundamental in Canada. Neither the decisions of Canadian courts nor the interpretations of international conventions to which Canada is a party have recognized such a right. The Court also notes that
the rights in s. 7 are guaranteed to “everyone.” Accordingly, recognition of what can be called the right “to know one’s past” would have implications reaching well beyond adoptees and donor offspring. Further, it is pure speculation to suggest that only minimal resources would be needed to give effect to such a right.
The s. 7 claim is rejected.
Rightly so. For one thing, it is not open to the Court of Appeal to disregard Supreme Court precedent as the plaintiff invited it to do. For another, it is indeed difficult to regard a right which neither legislatures nor courts have ever recognized as a general one as fundamental to the workings of the Canadian legal system. And the Court is right to point out that recognizing it as such would extend it to every person however conceived. Exactly how this right could be enforced for the benefit of individuals conceived the natural way, without a medical record, is not clear at all―such enforcement would require invasions of privacy on a scale difficult to imagine. But rights are rights are rights. Which means that they should not be extended lightly.
This case highlights the deficiencies of judicial review as a means to change social policies where multiple interests are at stake. It is one thing for courts resist attempts by legislatures or the executive to expand their coercive powers, or when politicians distort the democratic process in order to entrench themselves in power. It is something else for courts to intervene when legislatures try to strike a balance between the interests of different groups of citizens. The donor offspring have good reasons to want to know “their past.” But it may well be that many donors would not have donated sperm or eggs without the benefit of anonymity. Which, of course, would mean that infertile couples would not be able to have children. There are thus at least three groups of citizens―none of them, I should note, so numerous or powerful as to use its strength to dominate the political process at the expense of the others―whose interests must be taken into account and balanced. Legislatures can and ought to do that. Courts cannot, and should not try.