Desperately Seeking Daddy ^{Footnote 1} : A Critique of Pratten v British Columbia (AG)

The number of families created through Assisted Reproductive Technologies (ARTs) is increasing rapidly in Canada, ^{Footnote 2} and a pressing legal issue is sperm donor anonymity ^{Footnote 3} : Are children entitled to be given information about donors? And what are the implications of identity release for other parties to ARTs? ^{Footnote 4} Under current Canadian law, ^{Footnote 5} unless a donor has consented to the disclosure of identifying information, parties to ARTs are only allowed access to non-identifying information about the donor. ^{Footnote 6} Anonymous sperm donation, however, has been challenged. In the recent Pratten decision, the Supreme Court of British Columbia determined that anonymity violates the constitutional rights of children born of ARTs. The case was overturned by the Court of Appeal with reasons issued on November 27, 2012. ^{Footnote 7} Olivia Pratten has announced her intention to seek leave to appeal to the Supreme Court of Canada. We argue both that the Supreme Court of British Columbia erred in the original decision, and that the full complexity of sperm donation and its societal implications must be considered if the Supreme Court of Canada chooses to hear this case. First, donors have privacy rights. Second, children should not be considered to have a constitutional right to genetic information about their parents. Third, the elimination of anonymity would have a disproportionate impact on same-sex families and single mothers. Finally, the genetic essentialism inherent in Pratten’s claim must be contested: sperm donation does not make a man a father. ^{Footnote 8}

Pratten v British Columbia (AG)

Olivia Pratten was conceived using sperm from an anonymous donor. Although Pratten’s mother informed her daughter about the use of sperm donation, ^{Footnote 9} Pratten knows “almost nothing about the man who provided one-half of her genetic makeup.” ^{Footnote 10} In her claim, Pratten asserted that “she has long felt that a part of her identity is missing.” ^{Footnote 11} From an early age, Pratten was vocal about her desire to know her genetic origins: “At age 15, she presented her story at a fertility conference, and thereafter continued to speak at conferences and give interviews concerning the regulation of gamete donation.” ^{Footnote 12} When she was nineteen, she sought information about her donor from Dr. Gerald Korn, who had facilitated the insemination and “jotted down some information on a notepad: her donor was a Caucasian medical student who had a stocky build, brown hair, blue eyes and type A blood. Korn advised that the donor was healthy.” ^{Footnote 13} Under existing rules of the College of Physicians and Surgeons of British Columbia, Korn was not obligated to keep records for a patient for more than six years from the last entry recorded. Korn remains adamant that he is committed to protecting the privacy of his clients: “And what if the law were to change, forcing him to release information on his donors? ‘I might destroy the records’ he said.” ^{Footnote 14} Pratten has also pursued web-based search networks that rely on voluntary donor registration in an attempt to find her genetic father but has been unsuccessful.

Pratten filed her action in October 2008 “as a proposed class action on behalf of a class of donor offspring.” ^{Footnote 15} In December 2008, she obtained an interlocutory injunction “prohibiting the destruction, disposal, redaction, or transfer out of British Columbia of gamete donor records.” ^{Footnote 16} Korn asserted that all records related to Pratten’s insemination had been destroyed. ^{Footnote 17} Although this may have been a deliberate attempt to thwart Pratten’s request, his actions were not illegal, and because the records no longer exist, the Province sought to have Pratten’s claim deemed “moot, academic and futile.” ^{Footnote 18} Gropper J., however, found that “the plaintiff’s pleadings do not create a hypothetical or abstract question . . . While it may not be possible for the court to grant Ms. Pratten one of the remedies she seeks, specifically records of her biological father, other aspects of her claim are not dependent on the existence of those records.” ^{Footnote 19} The case was then heard by Adair J. in the Supreme Court of British Columbia.

Pratten made arguments based on ss 15 and 7 of the Charter. She used an analogy with adoption to assert that she was discriminated against based on her status as a child of ARTs. In British Columbia, adopted children can open their adoption files and have access to any genetic information held therein when they turn nineteen. ^{Footnote 20} Children conceived through donation of sperm, however, cannot access their donor files. This, Pratten argued, constituted a violation of her equality rights, and her s 15 equality claim succeeded. She argued, moreover, that access to genetic information is in the child’s best interest and that the court must promote such interests, irrespective of the needs and desires of either prospective parents or donors who were promised anonymity. ^{Footnote 21} This issue was not explicitly decided by the court. Pratten also asserted that the destruction of medical records pertaining to donor conception violates the donor-conceived offspring’s right to security of the person and that the government had failed to protect her interest in knowledge about her genetic origins. However, her assertion that “s 7 of the Charter guarantees . . . a free-standing constitutional right to know one’s origins and genetic heritage” ^{Footnote 22} was rejected. The legislation was declared to be null and void, and the province of British Columbia was required to amend its legislation. The Attorney General of British Columbia appealed, asserting “that the trial judge erred in finding a violation of s 15(1) of the Charter,” and Pratten launched a cross-appeal, contending “that the judge erred in not declaring positive rights under s 7.” ^{Footnote 23}

Frankel J. A. found that “the purpose of the impugned provisions is to remedy the disadvantages created by the state-sanctioned dissociation of adoptees from their biological parents.” ^{Footnote 24} Therefore, the legislation, while distinguishing between children on the basis of the manner of conception, an analogous ground of discrimination, is valid, as it is ameliorative in purpose and protected under s 15 (2) of the Charter. ^{Footnote 25} Frankel J. A. also rejected Pratten’s cross-appeal, asserting that “Ms. Pratten has not established that access [to genetic information] has been recognized as so ‘fundamental’ that it is entitled to independent constitutionally protected status under the Charter” ^{Footnote 26} and that the right that “Ms. Pratten seeks is far more extensive than what is enjoyed by most people in Canada and would result in state intrusion into the lives of many.” ^{Footnote 27} We agree with the decision of the Court of Appeal in its result. However, the limited legal language of the decision requires more fulsome contextual analysis.

The Privacy Rights of Sperm Donors

Retroactive de-anonymization is inherently problematic. The privacy concerns of donors in relation to assisted reproduction are legitimate. The rights of birth parents have been acknowledged in previous decisions. ^{Footnote 28} This is not to assert that the concerns of birth mothers and those of sperm donors are equivalent. In adoption, the birth mother has to endure nine months of pregnancy and the birth itself before relinquishing her child. This has social implications with regard to bonding and grief that do not apply in the context of ejaculation into a cup for the purposes of sperm donation. Relinquishing mothers also run significant risk of being stigmatized, a risk not faced by sperm donors. ^{Footnote 29} However, with regard to privacy, there are points of convergence between the interests of sperm donors and those of birth mothers. Sperm donors may wish to keep the knowledge that they have donated private; they may certainly oppose the intrusion of a biological child into their lives. In all Canadian jurisdictions where a sperm donor provided the “gift of life,” he did so in the “reasonable expectation that his identity would not be revealed and this reasonable expectation, like the privacy of the birth mother, may be protected by s 7 of the Charter.” ^{Footnote 30}

The privacy interests of parties to adoption were most fully considered in Cheskes v Ontario, in which the applicants, three adopted children and a birth parent, mounted an s 7 challenge to changes to Ontario adoption law that would have allowed the retroactive opening of adoption records without the consent of birth parents or adoptees. ^{Footnote 31} This represented a dramatic reversal of the longstanding policy of the protection of the anonymity of the birth mother. ^{Footnote 32} The 2005 Adoption Information Disclosure Act (AIDA) allowed “an adopted person . . . [to] apply to the Registrar General for a copy of his or her birth registration or adoption order.” ^{Footnote 33} The applicants asserted that the new legislation violated their rights to security of the person. ^{Footnote 34} Although the law did provide a mechanism for birth parents and adopted children to file “no contact” orders and set out criminal proceedings for violation of such orders, ^{Footnote 35} the applicants asserted that such provisions were inadequate for the protection of their privacy and dignity. They claimed that “the opening of confidential adoption records on a retroactive basis and the removal of the consent requirement violates the applicants’ right to privacy under s 7 of the Charter.” ^{Footnote 36} The Cheskes court noted that while the interests of “searching” adopted children have been the subject of public discussion, “the feelings and the fears of the ‘non-searching’ adoptees and birth parents who do not want to be found are no less legitimate and no less compelling” and that “the impact on their lives and those of their families is just as significant . . . Lives could be shattered.” ^{Footnote 37}

The parallel between sperm donors and the fourth applicant in Cheskes is particularly compelling. D. S. had fathered a child who was subsequently adopted. Many years later, he was contacted by a social worker asking if he would be willing to reveal his identity to his birth child. He declined, as his wife and family were and are unaware of the existence of the adopted child, and he feared that knowledge of the adoption would tear his family apart. ^{Footnote 38} The violation imposed by the AIDA was deemed to be not simply an invasion of documents or records but “of the dignity and self-worth of the individual, who enjoys the right to privacy as an essential aspect of his or her liberty in a free and democratic society.” ^{Footnote 39}

In the context of criminal law, the Supreme Court of Canada has asserted that “the essence of privacy is that once invaded, it can seldom be regained.” ^{Footnote 40} Although such statements were not made explicitly in the context of a discussion of sperm donation, the Privacy Commission has eloquently argued that “governments . . . [are] increasingly asking for the right to collect . . . ever more personal and intrusive types of information . . . with the assurance that privacy will be respected. Government has a responsibility to keep its word.” ^{Footnote 41} While the Supreme Court has recognized limits on the extent of privacy, particularly with regard to freedom of the press and the right of the public to know about court proceedings, ^{Footnote 42} such cases can be distinguished from those in which a vulnerable party deserves protection from harm that could be caused by disclosure of identity. This distinction was recently made clear by the Ontario Court of Appeal in MEH v Williams, in which a decision protecting a family law litigant’s privacy was overturned but her identifying personal information was nonetheless protected. ^{Footnote 43} The Cheskes court also found that no-contact orders would be deficient as they (ostensibly) prevented contact but not the release of identifying information. ^{Footnote 44}

In the wake of the Cheskes decision, the Ontario government announced that it would not appeal and would instead introduce new legislation. ^{Footnote 45} Although the interests of sperm donors do not have the weight of those of birth mothers, the privacy rights of these men are nonetheless worthy of protection; this was explicitly recognized with regard to the “sperm donor” father in the Cheskes adoption case. It is not reasonable that a person who donated sperm on the assumption of no contact would find his life disrupted, without his consent, years after such a donation. It is important to note that no jurisdiction that has created a system requiring sperm donors to agree to identity release has made such a system retroactive. ^{Footnote 46} Pratten’s claim, however, has even more problematic implications for women’s autonomy interests.

The Adoption Analogy and Constitutional Rights

Pratten’s s 15 argument relied on an analogy with adoption to support the assertion that she is discriminated against as the result of her birth status. British Columbia has the most generous provisions in Canada with regard to adoption records. Birth parents and adult adoptees can access adoption files unless a contact or disclosure veto has been filed. If a contact veto is in place, any party requesting identifying information must sign “an undertaking not to attempt contact or harassment of the vetoing party.” ^{Footnote 47} No such system exists for donor-conceived children. Pratten asserted that adoption record reform in British Columbia was based upon recognition “that questions about biological origins and feelings of loss and incompleteness are legitimate.” ^{Footnote 48}

Pratten relied upon expert evidence that lack of knowledge about identity creates insecurity, an inability to form lasting adult relationships, and an overwhelming sense of loss and “not belonging.” One of her witnesses, Dr. Diane Ehrensaft, asserted that being “denied access to half their genetic history can not only create medical risk but be a trigger for anxiety and depression, [and] . . . could have negative if not life threatening consequences.” ^{Footnote 49} Although this rhetoric was deliberately dramatic, the Attorney General of British Columbia did not contest the evidence. There is no doubt that Pratten’s distress is sincere; however, it is problematic to generalize with regard to all children born of ARTs from her example or from the analogy with adoption.

Neither Pratten nor the court distinguished between harm caused by secrecy and harm caused by anonymity. Advocates of disclosure argue “that family secrets are destructive, that secrecy reinforces . . . stigma” ^{Footnote 50} ; these arguments, however, are not applicable to Pratten, who was informed of her status as a child of ARTs. Arguments with regard to the harm created by anonymity and lack of genetic knowledge are much more controversial, and the evidence with regard to harm is prone to sample bias. ^{Footnote 51} In rejecting an application to open adoption records and reveal the identity of an adopted woman’s father, the Marchand court concluded in 2006 that expert testimony claiming harm based on lack of knowledge of genetic origins was “contradicted by the large, randomized empirical studies that have found no significant differences between the behaviors and characteristics of matched groups of adopted children and non-adopted children.” ^{Footnote 52} Studies of the impact of adoption on children are problematic as “typical recruitment of research participants through support networks may lead to a significant selection bias.” ^{Footnote 53} Equally, studies of children of ARTs are often biased because “only offspring who felt compelled to join a donor-insemination support network [are] contacted and solicited to participate.” ^{Footnote 54} As an Ontario court found in Cheskes, “there are few, if any, clinical studies (of adopted children opposed to disclosure) . . . because the non-searching population prefers anonymity and is hence unorganized. Unlike the searching population, it does not have lobby groups working on its behalf.” ^{Footnote 55}

Without fully considering either the validity of the harm argument or previous adoption cases in which requests to open files had been denied, Adair J. asserted that “the strong and irresistible implication is that there is much to learn from the adoption experience in considering the needs, circumstances and best interests of donor offspring” and ordered that records not be destroyed. ^{Footnote 56} Yet the leading Canadian decisions with regard to adoption disclosure up until the time of Pratten had concluded that “there is no liberty right to obtain identifying information about a person who has expressly refused to consent to its disclosure.” ^{Footnote 57}

Further, adoption records provide information for children about their birth mothers, but they often do not contain such information about fathers. Although the issue was not discussed by Adair J., even under revised adoption legislation, many children will not have access to information about their paternity. Adoption records “are created by virtue of the registration of live birth,” ^{Footnote 58} which does not require registration by a father, and while “it is highly unusual not to have particulars of the birth mother . . . it is much less unusual not to have the particulars of the birth father.” ^{Footnote 59} Pratten’s adoption analogy fails. Adopted children, even in an open record regime, do not have practical access to genetic information about their fathers.

Pratten asserted that all children, except those born via sperm donation, know their genetic histories. This, too, is erroneous. As the Royal Commission on New Reproductive Technologies acknowledged in 1989, “[A]pproximately 6–10% of children have no father identified on the birth certificate. Further, the Commission noted that the likelihood of non-paternity in children of heterosexual intimate couples in the general population may be as high as 10%.” ^{Footnote 60} In this context, the assertion of the Attorney General of British Columbia that “there is no law in B.C. guaranteeing anyone the right to know their genetic heritage and no law granting children, generally, the legal right—constitutional or otherwise—to access a parent’s medical history or personal information” has significant merit. ^{Footnote 61} Courts have, in fact, protected the privacy rights of parents who do not wish their children to know that they are not genetically related to their social fathers. ^{Footnote 62}

Pratten’s argument that children have a constitutional right to genetic knowledge about their fathers, if accepted, would represent a gross violation of women’s autonomy rights. ^{Footnote 63} We do not, and cannot, force all women to name the fathers of their children, nor do we force them to undertake genetic testing to prove that marital children are actually sired by husbands. ^{Footnote 64} Further, parents are not forced to release their medical records to their children; instead, access to such records is strictly protected, and s 13 (1) of the Privacy Act states that medical records cannot be released if such release is not in the best interests of the individual about whom the records are kept. ^{Footnote 65}

Adair J. accepted the s 15 claim but ostensibly limited the implications of the decision by asserting that “the appropriate comparison . . . is between adoptees . . . and donor offspring” ^{Footnote 66} rather than children who do not know the identity of their fathers. However, it is clear that many adopted children will not be able to learn the identities of their genetic fathers. Ironically, even a limited acceptance of Pratten’s s 15 claim would give donor children greater rights to knowledge of paternity than is available either to adopted children or to those without registered fathers. This problem was identified by the Court of Appeal: “[T]here are many non-donor offspring who do not know their family history or the identity of their biological father.” ^{Footnote 67} Pratten’s claim, however, reifies the centrality of biology to fatherhood and reinforces the vulnerability of families formed without men.

Clarification of Parental Status

Single mothers by choice and lesbian couples are vulnerable to interference by men and/or the state and require access to anonymous sperm in a context in which parentage in relation to children born of ARTs has not been clarified. ^{Footnote 68} Canadian family law, with the exception of Alberta, Quebec, and British Columbia, does not clearly outline who does, and who does not, have parental rights in the context of sperm donation and other reproductive technologies. In Alberta, a sperm donor who is not in a “relationship of interdependence of some permanence” with a female person has no legal status as a parent with offspring from his sperm. ^{Footnote 69} In Quebec, donation of genetic material for a “parental project” does not create a parental relationship or filial bond. ^{Footnote 70} The new Family Law Act in British Columbia also makes clear that a sperm donor is not a legal parent. ^{Footnote 71} In all other provinces, donors could find themselves financially liable for their genetic progeny, and families using sperm donation could be disrupted by sperm donors.

The vulnerability of single mothers and lesbian families is reinforced by the failure to distinguish between disclosure and anonymity. Heterosexual families can avoid the implications of donor identity release by not informing their children about the use of donor sperm. Social science research suggests that few heterosexual parents “disclose the nature of conception to their donor-conceived children.” ^{Footnote 72} Parents wish to prevent children from suffering from lack of knowledge about their donors. However, they also cite a desire “to protect the father from either potential rejection by the child or the social stigma associated with male infertility.” ^{Footnote 73} As Ellen Waldman has argued, “children will not know to look for their donor or their original records unless parents reveal that a donor was involved in their birth.” ^{Footnote 74} Based upon evidence regarding the harm of secrecy, a requirement to disclose ARTs status could be made. However, such a regulation would seriously interfere with the decision-making rights of parents. No jurisdiction that has eliminated anonymity has legislated that parents must tell their children about the use of donor sperm.

Lesbian couples and single mothers by choice, however, do not have the option of not disclosing the use of donor sperm. Studies have found that “almost all lesbian and single mother families had told their children at a young age,” ^{Footnote 75} often in a context in which they have deliberately selected anonymous donors. There is considerable fear “that men might assume that donating semen would give them rights over the child.” ^{Footnote 76} There was a fear that “even donors with no involvement could turn up after some years, demanding contact.” ^{Footnote 77} Existing jurisprudence suggests that women have reason to be concerned.

For example, in Johnson-Steeves v Lee, the mother asserted that the intention had been for her to be a single mother in a situation “analogous to that of a donor insemination where she maintained custody and primary decision-making powers.” When disagreement arose about access, ^{Footnote 78} Lee asserted that the child had a “right to know his biological father,” an argument that was implicitly endorsed by the court despite the absence of a relationship between the biological father and child. The court found that “society and biology have not yet reached the point where we have dispensed with fathers or mothers completely.” ^{Footnote 79} As Roxanne Mykitiuk has asserted, this case suggests that “in situations characterized by the absence of a man who has developed a socially based paternal relationship with a child, when the courts are able to identify a biological father they are most likely to do so.” ^{Footnote 80} In this context, single mothers by choice are vulnerable if the court can identify a genetic father, and lesbian co-parents share these vulnerabilities.

Ironically, even in Quebec, one of the few provinces to carefully protect the partner of the birth mother as the second parent in a conception project, courts have been quick to “find fathers” for lesbian families. For example, in a case heard in 2004, a couple had a child with a known donor. Against the wishes of the mothers, the father was awarded access three times per week, and the non-biological mother was considered a non-parent. The parental project was deemed to be between mother and biological father, despite the fact that the lesbian couple had a formalized relationship with each other and that both had signed the birth certificate. ^{Footnote 81} In another case, despite the fact that the father had had virtually no contact with the child, he was declared to be the father, while the lesbian co-mother, despite having acted as a parent to the child from birth, was excluded from parental rights and status. ^{Footnote 82} These cases illustrate the vulnerability of lesbian families and their need for anonymous sperm donation.

Outside Quebec, lesbian co-mothers can assert parenthood for the non-biological mother through one of two processes. The non-biological mother can undertake a second parent adoption, but this can only be done when the donor is either unknown or consents to the process. ^{Footnote 83} Or, in some provinces, the two mothers can sign the initial statement of live birth and therefore become presumptive parents. ^{Footnote 84} However, the ability to sign the initial statement of birth was achieved not through legislation, but through slow and painful litigation. In Saskatchewan, the possibility of acknowledging the planning of a lesbian couple was rejected “simply because a woman could not have provided the seed,” illustrating very clearly the emphasis on biology that is central to presumptions of parentage. ^{Footnote 85} In British Columbia, the right of lesbian co-mothers to register was established as a result of a human rights complaint. ^{Footnote 86} In Ontario, in a successful challenge under s 15 of the Charter, the court held that identification of biological parentage is a key purpose of vital statistics regimes, but not the only purpose. The court also clearly asserted that one option that was not available was to establish DNA procedures to test all parents. ^{Footnote 87} Even the gender-neutral birth certificate provides only presumptive proof of parentage and is thus contestable; it can be challenged by either the biological mother or a known donor. ^{Footnote 88}

In contrast, if non-disclosing heterosexual parents cohabitate, the child is presumed to be the offspring of the person in an intimate relationship with the mother, even absent such a man signing a birth certificate. ^{Footnote 89} The Pratten decision is unlikely to encourage more heterosexual parents who utilize ARTs to be honest with their children. In a context in which anonymity could be abolished but disclosure would not be mandated, lesbian families and single mothers by choice would have their reproductive options significantly narrowed. ^{Footnote 90} Moreover, the potential for interference from donors reinforces an essentialist, biological understanding of parenthood. ^{Footnote 91}

Resisting Genetic Essentialism

Disregard for the social labor of parenting is dangerous for all mothers. ^{Footnote 92} Genetic essentialism has been endorsed not only by fathers’ rights groups but also by some academics. John Eekelaar argues for the alignment of legal and physical truth, in particular with regard to paternity, in order to eliminate the shame of illegitimacy and infertility. ^{Footnote 93} However, as Carol Smart asserts, “[W]e need to consider how this one form of truth (genetic parentage) has become so overarching in significance?” ^{Footnote 94} Decisions driven purely by genetic “truths” have devastating consequences for women who perform the bulk of relational labor in families.

Pratten’s claim reflects the “resurgence in the importance of biological paternity” ^{Footnote 95} in Canadian courts. In part, this resurgence has occurred because the identification of biological fathers “enables the imposition of child support liability.” ^{Footnote 96} However, Pratten is an adult and has a social father, so the issue of financial support in her case is moot. Although Pratten does not argue from a fathers’ rights perspective, her arguments emphasize the importance of sperm, genetics, and biological connection in ways that echo the rhetoric of fathers’ rights groups. Such rhetoric has “ever-increasing political clout” and public support, but it is dangerous to the interests of women. ^{Footnote 97} Disputes over the naming of children and the adoption of newborns illustrate the influence of fathers’ rights rhetoric in Canadian courts.

As Trociuk, the leading naming case in Canada, illustrates, recognition of the genetic ties of men has imposed significant limits on the autonomy rights of mothers. Darrell Trociuk, an unwed father, did not have a relationship with Reni Ernst that would have met the statutory definition of “father” in British Columbia. ^{Footnote 98} Ernst excluded him from registration and gave her triplets her maiden name as their sole surname. Trociuk commenced proceedings for access and guardianship rights and underwent DNA tests. In September of 1997, he was legally recognized as the father of the children. He paid ordered child support semi-regularly but did not exercise his right to access. He applied for an order to vary birth registration forms so that he would be included and the children would carry his name. Ernst agreed to amend the birth register but refused to change the children’s names. ^{Footnote 99} The Director of Vital Statistics asserted that “if the mother was required to include the father’s particulars, information would be less readily provided and would be less reliable.” ^{Footnote 100} The court of first instance rejected Trociuk’s request ^{Footnote 101} and denied his claim that exclusion from the birth registration constituted a violation of his equality rights. ^{Footnote 102} Trociuk received sympathetic press from fathers’ rights organizations and asserted that “all Canadians should feel outraged.” ^{Footnote 103}

In January 2001, Trociuk’s appeal was dismissed. ^{Footnote 104} The majority decision, delivered by Southin J., asserted that to grant naming rights to fathers would be thought “by many mothers and would-be mothers, especially those who have deliberately chosen to be single mothers, to be a serious diminution of their rights.” ^{Footnote 105} Newbury J. A., concurring in the result, was explicit that the mother’s interests should prevail over those of the father; otherwise, the mother would “be required, sooner or later, to acknowledge a father against her wishes, or provide her reasons for not doing so,” and this would represent a serious invasion of the mother’s privacy and a violation of her autonomy rights. ^{Footnote 106} This issue was ignored in later court proceedings.

Prowse J. A. dissented, and her arguments would prove to be prescient in terms of subsequent findings by the Supreme Court of Canada. She asserted that the mother’s “unfettered power to refuse to acknowledge the biological father of a child” was unconstitutional. She further argued that a show cause procedure should be instituted to provide “the father with the right to challenge his exclusion from the registration and naming process.” ^{Footnote 107} She admitted that this might allow a “father of a child, or a person claiming to be the father, to harass the mother at a time when she is vulnerable” but considered this risk to be acceptable. ^{Footnote 108}

On October 22, 2001, Trociuk filed his application for leave to appeal to the Supreme Court of Canada. ^{Footnote 109} The appeal was allowed, and the reasons of the court were issued on June 6, 2003. The result was deeply disturbing. Deschamps J. argued “that including one’s particulars on a birth registration is an important means of participating in the life of a child.” ^{Footnote 110} This assertion elevated the importance of the biological tie over all other connections that the father, or another parent, might develop with the child over time. ^{Footnote 111}

The impact of Trociuk was immediately apparent in newborn adoption cases. In 2006, the so-called Saskatchewan Dad Case “became a cause célèbre for the fathers’ rights movement in Canada,” ^{Footnote 112} when the “Dad” contested the mother’s right to relinquish the child for adoption and made relentless use of the media to promote his cause. ^{Footnote 113} The mother had terminated a relationship with the genetic father at the time that she had become pregnant. The relationship between the parties had ended as the result of a “violent incident.” ^{Footnote 114} Hendricks initially denied the violence; though he later admitted to violent actions, he blamed “his problematic relationship with Rose.” ^{Footnote 115} The mother had a history of substance abuse and limited financial resources. ^{Footnote 116} Smith J. described her as “self-aware of her own failings” instead of evincing any contextualized understanding of the problems she faced as an Aboriginal woman in a society rife with colonialism. ^{Footnote 117} With the help of her sister, who worked in a First Nations service agency, the mother had hand-selected an adoptive couple to parent her son. ^{Footnote 118} She had then endured a complicated and life-threatening pregnancy. ^{Footnote 119} Ultimately, it was determined that the best interests of the child would be met by custody remaining with the adoptive parents. ^{Footnote 120} The terms of the decision, however, elevated the importance of genetics and biology. Smith J. quoted Abella J. A. in declaring that custody must be determined from the perspective of the child: “It is a mistake to look down at the child as a prize to be distributed, rather than from the child up to the parent as an adult to be accountable.” ^{Footnote 121} But to consider the father to be a parent in any capacity is to look at the situation from a biologically based perspective of ownership. The genetic father had no relationship with the child to be upheld. Hendricks would undoubtedly have appealed the ruling had he not been killed “in a [tragic] motor vehicle accident in August 2007.” ^{Footnote 122} Given the argument in Trociuk, that birth fathers have significant interests to be protected even absent any relationship with a child, ^{Footnote 123} the outcome of such an appeal would have been far from certain.

A 2009 case, heard in the Ontario Superior Court of Justice, illustrates the likely future of newborn adoption cases. ^{Footnote 124} The father had been informed of the pregnancy. The parents had agreed upon an abortion, but the mother decided that she could not follow through with this decision. The father knew that she had not aborted, but he did not show interest in the mother’s pregnancy or provide her with financial or emotional support. After the birth, the mother told him that the child had been stillborn, when in fact the child had been released for adoption. ^{Footnote 125} Adoption proceedings were underway, with the child in a probationary placement, when the father filed his acknowledgement of paternity. ^{Footnote 126} The court found that “the essence of the father’s case is established, namely that she did deceive him by telling him the child was stillborn and in this way prevented him from asserting his paternity,” but it did not contextualize the fact that the father had been adamant that the mother should abort. The court admitted that the father did not fall within the strict definition of a father as set out in the Children’s Law Reform Act. ^{Footnote 127} However, the father argued that the strict definition should be avoided “by reference to principles of fundamental justice, including Charter values.” ^{Footnote 128} The father relied expressly on the ratio in Trociuk to argue that the definition of “father” “may be ripe for reconsideration.” ^{Footnote 129} The mother countered that she would prefer to seek custody herself rather than to have the biological father obtain custody, but the court declared that “the adoption placement is vulnerable as to the father only and not as to the mother.” ^{Footnote 130}

Naming and adoption cases illustrate the practical and lived implications for women implicit in the notion that sperm donation (whether through intercourse or through ejaculation into a cup for the purposes of ARTs) constitutes fatherhood. Pratten’s claim has the potential to further entrench the genetic essentialism evident in cases such as Trociuk and AL v SM. The tendency of the court to endorse the purely genetic claims of men has very real and negative implications for women’s lived experience as primary parents.