It wasn’t too long ago that fertility or infertility were rarely discussed topics, and when these topics were discussed, they were discussed in hushed tones. Even in current times, when we do discuss fertility challenges, it seems that the general population rarely focuses on factoring in the sperm component of the equation, and instead focuses on other issues relating to female fertility. We know with certainly that this is not representative of reality, and sperm, whether it is a quantity issue (or a complete lack thereof depending on the prospective parent(s)), or a quality issue, frequently presents a challenge to those looking to conceive.
So this week, in honour of Canadian Men’s Health Week, we are going to think about infertility and fertility issues from a different perspective: what are the legal implications in using donor sperm to conceive?
In Canada, it is illegal to purchase sperm from a donor or from a person acting on behalf of a donor, punishable by up to 10 years in jail and/or $500,000.00. Unfortunately, evidence suggests that this law has led to a drastic decrease in the number of sperm donors available in Canada. Accordingly, while some people use Canadian donor sperm from a Canadian sperm bank, many instead import sperm from donors in the U.S. or Europe (who of course were compensated anyway). Further, some people choose instead to build their family using known sperm donation, which is the use of donor sperm from a person who is known to the intended parent(s). There are many good reasons to choose to use sperm from a known donor, such as having certainty about the donor and their health and attributes, and having access to medical information both in the past and in the future about the donor. Some, but not all, adult donor-conceived people have expressed a desire to know the identity of the donor.
Unfortunately, in Ontario, the use of sperm from a known donor is particularly fraught with risk. While other provinces, in particular Alberta and British Columbia, have codified in their legislation that a donor is not a legal parent, Ontario lags behind in this regard. This, coupled with Ontario caselaw that (correctly, in my opinion) recognizes multiple parent families. It is uncertain, then whether a known sperm donor may in fact be a legal parent of a child born through known sperm donation in Ontario (and therefore not only have rights to the child but obligations).
The situation is even more problematic for non-heteronormative families using known donor sperm to conceive. Ontario’s current parentage legislation is largely based on heteronormative presumptions – i.e. a woman from whom a child is delivered is a mother, and if she has a male partner or husband, he is presumed to be the father. If the person who carries the child has a female partner, or a wife, there is no presumption of parentage. Even worse, if a heteronormative couple use a known sperm donor, the intended father can be placed on the birth certificate without further legal steps (although this is not necessarily conclusive that the donor is not a parent), but the non-carrying mom cannot be put onto the birth certificate without court involvement.
So how can those using known donors to conceive in Ontario protect themselves? A legal contract in advance and where all parties have independent legal advice is a good start. If there is an issue, we hope the contract will be enforced or that it will be regarded as evidence of the parties’ intention. That being said, a legal agreement is not enough. Anyone using known donor sperm to conceive in Ontario currently ought to consider the necessity of a second parent adoption, or a declaration of parentage and/or a declaration of non-parentage depending on their specific circumstances. The real risk, then, is if the donor changes his mind in the interim, during the pregnancy or prior to the extraneous post-birth legal process. This risk can only be remedied through amended or new parentage legislation in Ontario. Premier Kathleen Wynn recently promised new parentage legislation by the end of 2016. We don’t know what that legislation will look like, but let’s hope it clarifies that a donor is not a legal parent and removes heteronormative and gender assumptions and presumptions, thereby protecting the parents, the child, and the donor. There are many good reasons to use a known donor to conceive, and especially in light of the prohibition on compensating gamete donors, the legislation ought to promote secure family building in this way.
Sara R. Cohen, LL.B. is a fertility law lawyer and founder of Fertility Law Canada at D2Law LLP and a member of Fertility Matters Canada Board of Directors. You can follow her on twitter @fertilitylaw and on facebook at www.facebook.com/FertilityLawCanada.