Donor Anonymity in Canada: Assessing the Obstacles to Openness and Considering a Way Forward

Vanessa Gruben and Angela Cameron

(2017) 54:3 Alberta Law Review 665.

Abstract:

This article discusses donor anonymity in Canada and the need for law reform in this area. Currently, assisted reproduction is regulated by both the provincial and federal governments, meaning this area is regulated in a piecemeal fashion. Disclosure of donor identifying and non-identifying factors is restricted to limited information, utilized only to keep statistical records. Due to the law limiting identifying information, donor-conceived persons struggle in their attempt to discover their genetic origins. Further, provincial family law does not recognize third party reproduction, which leaves modern family units unprotected. A definition of openness in gamete donation is given in Part II. Part III addresses the law-making and assisted reproduction difficulties arising from the division of powers. Part IV analyzes the potential impact of federal prohibitions on the purchase of sperm and eggs and whether disclosing a donor’s identity will negatively impact gamete supply in Canada. The final two sections discuss the failure of provinces to enact family laws which protect the parental status of intended parents and how past cases under the Canadian Charter of Rights and Freedoms have been challenging for donor-conceived persons. The authors propose that reform should be dealt with by the legislature in four areas: provincial family law reform where necessary; robust and meaningful public consultation; interprovincial cooperation if possible; and, consideration of law reform in other jurisdictions.

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About the Authors:

Vanessa Gruben’s research focuses on the legal regulation of various aspects of assisted human reproduction including contractual disputes over frozen embryos, privacy and access to information, gamete donor anonymity, the regulation and funding of assisted reproductive technologies, and the constitutionality of the Assisted Human Reproduction Act. Her research also includes health law more generally as well as the protection of language rights in Canada. In addition to her research work, Professor Gruben has appeared on behalf of Amnesty International Canada before the Supreme Court of Canada in Charkaoui v. Canada, [2007] 1 S.C.R. 350;Charkaoui v. Canada, [2008] 2 S.C.R. 326; and Khadr v. Canada, [2010] SCC 3 and the Canadian Human Rights Tribunal. She is also a member of the Health Professions Appeal and Review Board and the Health Services Appeal and Review Board.

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Angela Cameron’s research is generally in the area of social justice, with a particular focus on the equality interests of women. Professor Cameron’s research areas include criminal law, restorative justice, property law, reproductive technologies law, family law, legal theory, sociological approaches to law, and human rights law.  Professor Cameron is the Chair of  FAFIA (http://fafia-afai.org/en/), one of Canada’s leading feminist organisations, as well as the Secretary of the Board of Directors of the Canadian Journal of Women and the Law, and the Canadian Association of Law Teachers. In 2015 she received the Faculty of Law’s community service award.

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