What's the deal with sealing orders?

Sometimes establishing a family requires the involvement of a court. How much should be public?

Sometimes establishing a family requires the involvement of a court. 

Maybe it's because of a dispute. In K.L.W v Genesis Fertility Centre, a woman and a fertility clinic disagreed about whether she had the right to use the sperm of her deceased partner. In S.H. v D.H, a woman and her ex-husband disagreed about whether she had the right to use an embryo they had created together while married. In W.W. v X.X. and Y.Y. there was disagreement about whether a man who provided sperm to a lesbian couple was a donor or a parent. 

Sometimes, though, even when everyone is on the same page, a court still must be used. In many provinces, for instance, transferring parentage from a surrogate to an intended parent requires going before a judge.

Many of us who are interested in surrogacy are interested in knowing how the arrangements are working out. Do the parties usually agree? When they don't, what do they disagree about? When they disagree, how are the issues resolved? How often do they disagree? One way of answering these questions would be to keep an eye on what's happening in the courts. 

Alas, much of what the courts do with respect to assisted reproduction cases is kept secret, a.k.a. "sealed." Especially, it seems, where surrogacy is concerned.

Cindy Wasser, a fertility lawyer in Toronto, argues that that is as it should be. She says these details are "nobody's business" and that parents alone should decide what information is made available to the public about their child's conception. "They shouldn't be treated differently than any other parent," she says, pointing out that there are no public records detailing how the rest of the country's children were conceived.

Courts can sift through our most private information. Because they resolve specific cases — a disagreement between two people over a particular embryo, say, or between this intended parent and that surrogate over a particular child — it can feel very personal. But the court process also serves the greater public good. 

For one thing, a court's judgement about your embryo or your surrogate may guide future judgements — or future behaviours. For another, it can help policymakers and society at large get a sense of how things are going. Were we wrong to worry about the things we did when the Assisted Human Reproduction Act was passed in 2004? Are there other things we ought to be worried about? Is everything just fine? These are questions worth asking and answering.

Sealing orders make all of these things more difficult. 

In many cases, such as in K.L.W. above, a judgement may be published — using initials instead of names and redactions instead of details, to protect the privacy of the individuals — but the evidence that supports the judgement is kept off limits. Affidavits, court records, transcribed testimony — you and I can't see that. Neither can lawyers and judges who weren't directly involved in the case.  

But some court outcomes are even more hidden. In most surrogacy cases — in which a court declares the woman who gave birth not to be the parent and the people who intend to raise the child as the only parents — there is no formal judgement, because everyone agrees. In such cases, if sealed, pretty much all traces of it disappear from the public record.

But what about cases where the parties don't all agree? What happens then? What are the disputes over? Can we learn something from those disputes? Can we make our laws better as a result? Can we change practice as a result? Surely this is one of the great values of the process — learning — but to do that, we have to know what is happening.

Do we?

Stefanie Carsley is an assistant professor in the University of Ottawa's Faculty of Law. Her doctoral research involved interviews with 26 fertility lawyers who work with surrogates and intended parents. One of the most interesting findings from her interviews was that there had been a few cases in Canada where surrogates had changed their minds and wanted to keep the children they'd carried. 

"In at least one instance," says Carsley, "a dispute was litigated, but the lawyer in that case told me that the judgment was 'sealed' and that as a result 'no one has access to this decision'." Carsley was surprised by this. "I would have thought that the judgement would be published but that this would be redacted and the parties' names would be replaced with initials in order to protect their identities." 

The fact that the judgement itself is sealed troubles her. She feels strongly that judges, lawyers and scholars should know that these cases have arisen. "If decisions like this are sealed, then there is no precedent for other judges to follow in future cases. Other lawyers I spoke with did not know that this case had arisen, nor how it was decided, and so they cannot advise their clients accordingly. Lawyers also cannot rely on this case in the future if they have a client who is faced with a similar situation. And academics do not have a full understanding of how courts have responded to surrogacy cases.”

We owe it to people to protect their privacy. But that right to privacy needs to be balanced against the public interest of knowing what's happening. In Canada, we have an "open court" principle: we believe that the best way to give people confidence in the courts and in our judicial system is to keep courts open and public. Freedom of the press is accepted as an essential part of that openness. Anonymizing, thoroughly redacting and using initials can go a long way to protecting privacy, while guarding against the hazards of secrecy. 

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