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

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

May 25, 2014 | Donors, Fertility Law, Intended Parents, 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).

Gestational Surrogacy an Increasingly Common Choice for Intended Parents

Gestational Surrogacy an Increasingly Common Choice for Intended Parents

Feb 27, 2014 | Intended Parents, Reproduction, Surrogate Mothers

Late last summer, comedian Jimmy Fallon announced that he and his wife had a new baby girl, Winnie Rose Fallon, who was brought into the world with the help of a gestational surrogate. While many people reacted with surprise to their news, the Fallons are far from the first parents to rely on a gestational surrogate. The Fallons’ announcement, however, sheds light on an increasingly common way for partners to expand their families. In fact, according to the TODAY show, more couples are choosing gestational surrogacy than ever before. As surrogacy becomes more and more mainstream, it will be important for intended parents to fully understand all of the implications and ramifications of selecting this third party reproductive option and why legal guidance is absolutely critical.

Legal Parentage Matters

In 2012, a set of intended parents in Winnipeg had their lawyer draw up an agreement that they felt would establish them as the legal parents of their children who were to be born through surrogacy. Their gestational surrogate became pregnant with twins and the couple began planning and preparing for their children to arrive. Their planning, however, did not include the legal struggles they would face following the birth of their children. The gestational surrogate delivered twin boys, but due to the nuances in and interpretation of Manitoba law, the intended parents were surprised to discover that they had no legal right to the children. That is, they could not be registered as the legal parents of their children. In that province, the birth registry lists the woman who delivered the child as the legal mother, regardless of the surrogacy agreement the intended parents and the surrogate mother entered into.
These intended parents travelled an expensive and confusing legal journey to transfer parentage of their twin boys. Beyond the costly nature of this process, the question of legal parentage could have negative ramifications for the custodial parents: what if one of the children should require medical attention? Who is legally allowed to provide consent for those procedures? Consider, too, the woman who thought she was serving the couple as a gestational surrogate; she now finds herself the unwitting legal parent to twins. In spite of their agreement, the laws were not on their side.
Canadian parentage laws differ across provinces, with Quebec on one side, openly discouraging surrogacy, and British Columbia on the other, recently passing legislation to help define legal parentage in surrogacy cases. While the Winnipeg parents thought they had covered their legal bases, they found themselves in murky legal waters. A complete and thorough understanding of parentage and surrogacy—with guidance from a fertility lawyer whose experience covers your province’s specific laws—is critical to establishing and maintaining legal rights to the children who are born through surrogacy. As gestational surrogacy becomes a more common choice in Canada, the legal landscape will continue to evolve… making legal guidance from an experienced fertility lawyer an even more important factor for intended parents and surrogates alike.