Who Should Be The Legal Parents When Donors Are Involved In Reproduction?

Who Should Be The Legal Parents When Donors Are Involved In Reproduction?

The legal rights of sperm donors in Canada continues to be a murky area after a 2013 Ontario case settled out of court. In this case, a sperm donor, who was acquainted with the intended parents, later came to regret his decision to forego any parental rights to the child his sperm helped create. He launched a lawsuit in which he sought to be recognized as the child’s legal father and to gain “liberal access” to the child.

In the settlement, the judge ordered that the sperm donor was not the child’s legal parent, and the donor was entitled to one hour-long supervised meeting with the child. After that meeting, the donor is barred from further contacting the family. However, because the case was settled before the trial began, “the rights of parents and sperm donors [remain] in limbo throughout much of the country.” In fact, only British Columbia, Alberta, and Quebec have existing legislation on this issue, and experts had hoped a ruling in this case would help clarify the legal parentage landscape in cases of third party reproduction in Ontario.

When intended parents expand their families through sperm donation from a sperm bank, there are typically no questions about legal parentage. However, in cases like this one, where the donor and the intended parents are acquainted with one another—lines can become blurred. For example, a woman in Montreal asked an ex-boyfriend to help her create a child, whom the mother raised as a single parent until her death three years later. The sperm provider was legally ruled the child’s father after winning a paternity ruling, “triggering ripples of concern across the country,” and potentially opening the doors for sperm donors to “assert parenthood and even custody rights.”

A U.S.-based case also sheds light on the importance of seeking legal counsel in advance of any sperm donation. In 2009, a man donated sperm to a couple whom he met while responding to an ad on Craigslist. Although the intended parents and donor created and signed a contract on their own, none of them sought legal advice. Several years after the child was born, the state’s Department of Children and Families argued that the sperm donor is, in fact, the child’s legal father who is responsible for paying child support. They were successful.

Once you have decided to expand your family through third party reproduction, or once you have decided to donate sperm or eggs to intended parents, it’s absolutely essential to obtain legal advice in order to protect yourself before engaging in any donation or executing any agreement. By employing a lawyer who is well-versed in the laws dealing with third party reproduction and legal parentage, intended parents can understand their rights and obligations and the likelihood of success if a donor were to attempt to establish parentage of the child following the birth. Additionally, donors who work with a lawyer can help prevent future unintended legal and financial consequences of helping to create a child while also ensuring that the donation falls within the legal parameters of the Assisted Human Reproduction Act (AHRA).