Friday, 2 November 2012

Another Sperm Donor Controversy

Question:  I’m thinking of being a sperm donor, but I’m worried about having to pay child support for any children that are conceived using my sperm.  Will I be legally responsible for child support if I donate sperm?

Answer:  The laws in Canada preclude a sperm donor from having to pay child support or to have any legal parenting responsibilities to any children conceived via the donor’s sperm.  Nonetheless, a recent case from England about a sperm donor who is being required to pay child support plays on the fears of all potential and actual sperm donors. 
The news article from England ("Gay Sperm Donor Ordered to Pay Child Support for Daughters 13 Years Later") illustrates the critical but very fine line between being a sperm donor and being a father.  In that case a man who claims to have acted as a “sperm donor” for a couple many years ago has been hit with a child support order for the two children that resulted from his “donation.” 

In this recent English case, which has similarities to some other recent American cases, a man had agreed to provide his sperm to a female couple.  The three individuals had agreed that the man would act as a sperm donor only and that there would be “no strings attached” but did not draft any sort of written, legal agreement outlining these terms.  Nonetheless, after the couple separated, the man received a retroactive child support order for the children, who were born in 1998 and 2000.  The man has had no contact with either of the children.  

In countries like Canada (as well as the United Kingdom and the United States, for example), there are explicit laws that define the role of sperm (as well as egg and embryo) donors and generally limit their legal responsibilities.   The legal responsibilities of sperm donors are usually delineated by law to exclude parental responsibilities such as guardianship or child support (in Canada see the Assisted Human Reproduction Act).  Typically, the sperm donor is not even required to permit his identity to be released to the person who is conceived from his sperm or the recipient.  

Nonetheless, when people enter into private arrangements, as occurred in the recent English case, the law may not recognize the male as a “sperm donor” only and he may be legally considered to be a father, just like any other father.   In very clear “text book” cases it is easy to distinguish a sperm donor from a father.  The donor intends only to give his sperm to a recipient to assist with conception, but chooses to have no parental responsibilities.  A “father,” on the other hand, intends to play a role in the child’s life.  

It is evident that it is not necessary that a “father” has any intention to conceive a child.  In reality, aside from the very clear cases when a man either intends to be a sperm donor or a father, the legal differentiation becomes more evasive.  This is particularly so when a man neither intends nor wishes a child to result from an encounter, such as, in a “one-night stand” experience.  In that situation, the man may be responsible for a wide range of legal responsibilities for the child regardless of his lack of intention to conceive a child or to play a role in a child’s upbringing.  

What, then, is the essential distinction in law between a “sperm donor” who is excluded from legal parental responsibilities and a “father” who bears significant legal responsibility for the child?  

This blog post will continue with the next segment analysing the legislative history for the distinction between  “fathers” and “sperm donors.” 

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