Another Sperm Donor Controversy: Part 3 "Are you the Father?"

Yet another case has appeared in the news in which a man who thought that he was a 'sperm donor' has been ordered to pay child support.  In this case, the scenario occurred in Kansas, with remarkably similar details as the U.K. case.  You can read further details here:  CBC News article on Kansas sperm donor issue or here :  CNN coverage on Kansas sperm donor controversy . 

It is evident that, although it is extremely rare, sometimes individuals who only intend to be sperm donors may be held to have some level of legal responsibility for the children that were conceived by their donation.  On the other hand, many men find themselves with the full spectrum of legal responsibilities for a child that resulted from a very brief encounter, in which the man lacked any intention for the conception of a child. 

Men who have a sexual encounter  that results in a child, though, and men who donate their sperm outside of the legal parameters for doing so, like the English “sperm donor” will probably be legally construed as a “parent” of the child, not a mere donor.  The resulting irony is that the donor, who intentionally assists with the conception of the child, is sheltered from legal responsibility for the child whereas the sexual partner, who has no intention for the conception of a child may end up with decades of legal obligations.  This ironic legal distinction is simply the result of the assisted human reproduction laws’ goal of encouraging a sufficient pool of sperm donors for the convenience of individuals seeking donor-assisted conception services. 

Consequently, the intention to create a child is irrelevant in determining whether or not an individual will have legal responsibilities for the child.  In the case of sperm, egg or embryo donors who utilise the public donation scheme or draft an appropriate legal document delineating their roles, there will be no legal responsibilities for the child resulting from their donation.  Instead, the standard parental legal responsibilities for the child will be linked to the donor recipient and usually his or her partner or spouse.  The donor is therefore considered to merely be a donor, rather than a parent.

Given the clear limitation of the responsibility of sperm (or egg or embryo) in the relevant laws, there ought to be no concern on the part of donors that they may find themselves in a situation like that of the man in the recent English case.  Thus, the law recognizes a distinction between a “sperm donor” who merely intends that his sperm be used to conceive a child for which he will have no responsibility and a man who merely intends to have an intimate experience with a woman and neither intends to conceive a child nor intends to have any responsibility for any resultant child.  The law places emphasis not on the intention to conceive a child, but on the choice of the manner of interaction with the other parent. 

What the law clearly supports is the principle that everyone must take responsibility for his or her reproductive actions.   There is a false sense of security in the “one-night stand” type relationship that bears no reality to the legal consequences of such an encounter.  Similarly, “donors” who choose to enter into private donation relationships should take the time and spend the money to have an appropriate legal agreement drafted which reflects the intentions of the parties involved. 

In the midst of the tangle of parental and donor’s legal responsibilities; however, is the intrinsic reason for these responsibilities: the child.  Family law governing the responsibilities of children’s guardians exists to ensure that children’s needs are met by the adults who chose to conceive or parent them.  Whereas adults can engage in a range of reproductive choices, freedoms and options, the rights and concerns of the children that are created through the exercise of these options must be paramount.

Of course, in the case of the English man who is facing a child support order for the two children conceived through his sperm donation, the legal upheaval that now exists could have been avoided if the parties had attended at a lawyer’s office prior to entering into the arrangement.  It is always more costly and difficult to seek legal counsel after a problem has been created rather than to seek assistance from a lawyer with preventing such a problem. 

I want to take my kids to Disneyland but my ex, the children’s mother, doesn’t agree. Can I take them anyway?

In most circumstances, you must get the written consent of your minor child’s other parent or guardian to travel outside of the country, even during your own scheduled parenting time.  Even if you and the other parent are still in a relationship, and you plan a trip alone with your children, the other parent will still need to provide written consent to such travel.

In your case; therefore, you will most likely not be able to travel outside of Canada unless your ex indicates her consent on a notarised travel permission document.

Sometimes, when parents separate, they include a term in their agreement order that indicates that the consent of the other parent is not necessary for travel outside of the country.  If that is your situation, then you will need to take a copy of the order or agreement with you for travel.  Note that if your agreement was informal, and was not signed with independent legal advice, it may not be accepted as valid by third-party agencies (like airlines or customs agents).   

If you don’t have an agreement or order, or you do have one but it doesn’t reference international travel, you will typically need a notarised travel permission document from your ex to take the children out of the country. 

For more family law information, listen to "Family Law Answers for Real Life" radio program live every second Wednesday night at 9 p.m. (MST) or on demand at:  http://www.blogtalkradio.com/lisatose

Will a Judge always let the kids live with the Mother after a separation?

Years ago, it used to be assumed that the children were always best taken care of by their mother.  This was particularly thought to be true when the children were young.  This presumption was called “the tender years doctrine.”  Courts used to support this social assumption and, if a parenting application were to be heard, a judge would typically order that the children should live with their mother rather than their father.

This is no longer the default presumption.  In Canadian family law, the best interests of the children are the most important considerations.  Therefore, custody, parenting or access arrangements ordered by the courts are usually constructed to support the children’s best interests, which will depend upon their individual circumstances.

From a legal perspective, in most cases, it is assumed that the children’s best interests are best fostered by having a good relationship with both parents.  The judge may consider many factors in deciding how much time the children spend with each parent, such as the age of the child, the amount of time each parent spent with the child before the application, and any other relevant considerations. 

Gender is not a relevant consideration and there is no legal presumption that females are naturally better parents than males.

Don’t forget that you and the other parent, together and outside of court, can determine a parenting schedule that works best for your children.  If you can come up with an agreement, this can be made into a legally binding court order without having to litigate in court.

For even more family law tips & information, listen to Lisa's Radio Program, “Family Law Answers for Real Life” on demand at:
http://www.blogtalkradio.com/lisatose

You should consult with a qualified attorney in your jurisdiction to receive specific legal information on your unique situation.

My work schedule has changed and now I can’t see my children at the time stipulated in the parenting order. What do I do?

Unfortunately work schedules can often change and this may affect your ability to see your children. If you have a parenting order or agreement with specified times and dates for parenting time, when your employer changes your work schedule you will have to try to amend the parenting order or agreement. Ideally the other parent would understand that you have little or no control over your work schedule and would accommodate a change to the parenting order or agreement with little formality. 

It may be helpful for you to bring up the possibility of your work schedule changing at the time that you are creating your parenting order or agreement. It is wise to build in provision into your parenting agreement that allows for the schedule to change if your work schedule changes. For example, if you see your children 30% of the time you could change the dates in the order to accommodate your new work schedule and still see the children 30% of the time.  Essentially, you and the other parent may agree to have a term in the order or agreement that allows that you each have the same proportion of time with the children regardless of your work schedule changes.

Another option is to structure your parenting order or agreement without specified dates for each parent, but with a guideline of how much time each parent will have parenting time (with the children).  That way, if either parent's schedule changes, or other events arise, the order or agreement is already sufficiently flexible to accommodate those unforeseen changes.  This kind of an agreement is much more flexible, but requires both parents to have good communication and co-parenting skills.

It is important that both you and the other parent remember that you are working together as co-parents, for the best interests of your children, regardless of the fact that you are now separated or divorced.   It may require some cooperation and some extra effort on your part or the part of the other parent, but it is usually considered in law to be in the best interests of children to have as much parenting time as possible with each parent. With this in mind, when a parent’s work schedule is changed, the children should not lose out on their time with that parent. 

If the other parent is not accommodating or willing to change your parenting order, you may seek the assistance of a family mediator or a collaborative lawyer to help to create a peaceful resolution. Should you need to go to court for assistance, a change to your work schedule would be sufficient grounds for amending a parenting order.

For even more family law tips & information, listen to Lisa's Radio Program, “Family Law Answers for Real Life” on demand at:
http://www.blogtalkradio.com/lisatose

Another Sperm Donor Controversy: Part 2 - Donor-Assisted Conception Laws

Given that the widespread use of donor-assisted conception is relatively new, the legislation governing its use has only recently been introduced.  In contrast, legislation that establishes the responsibilities for more traditional parenting roles has not enjoyed the same the kind of in-depth examination.   As a result, men who lack the intention or desire to be a father, but who are nonetheless biological fathers, can have the usual legal responsibilities for their biological children. 

It is no accident that the legislation that governs the legal roles of sperm donors is so clear about the lack of legal responsibilities of sperm donors to the children that are created with their donation.  Canada, for example, examined the roles of sperm donors in the assisted human reproduction arena before establishing their respective laws.  The overarching goal of the laws regulating the use of sperm donors (as well as egg and embryo donors) was to encourage people to be comfortable donating sperm (or eggs or embryos) without the fear that any legal responsibility for any resultant children would ensue. 

In Canada, and originally in the U.K. the rights of the children born through sperm, egg or embryo donation to know the manner of their conception or the identity of their donor biological father or donor biological mother were determined to be less important than encouraging donations.  It was feared that if any hint of legal responsibility was infused into the laws, even to require donors to consent to the release of their identities to the children upon them reaching the age of majority, would limit the pool of potential donors and make it more difficult for individuals seeking donors for conception.  The U.K. has since revised this aspect of their law and now allows donor-conceived children to have access to their donor’s contact information, when they attain the age of majority.  This approach is much more in line with most modern adoption laws. 

As the use of donor-assisted conception increasing in countries like Canada, the United States and the United Kingdom so does the demand for donors.  Additionally, donor-assisted conception or assisted human reproduction technologies have become an accepted aspect of reproductive freedom.   It is no surprise, then, that in developing assisted reproduction laws, the legislators did not want to be seen as encroaching on the reproductive choices available. 

Moreover, assisted human reproduction legislators were reluctant to step on the toes of the clinicians who offer assisted reproductive services.  While in a country like Canada it is illegal to pay donors for anything above their out-of-pocket expenses related to the donation, the clinics that provide the services are largely private, for-profit enterprises.  Although there continues to be a great push to include assisted conception services within the public health care system in Canada, these services have remained within the private medical service industry. 

This article will be continued in a later blog post, which will analyse the legal distinction between a “sperm donor” and a “father.”

For even more family law tips & information, listen to Lisa's Radio Program, “Family Law Answers for Real Life” on demand at:
http://www.blogtalkradio.com/lisatose

Lisa is conducting a seminar for separated and divorced parents on December 4, 2012 in Leduc, Alberta. This seminar will address the challenges that can arise for separated and divorced parents through the holidays, such as accommodating various schedules and determining who gets to be with the children on the holidays.  For more information please go to www.lisatose.com where you may register online.
 

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.” 

For even more family law tips & information, listen to Lisa's Radio Program, “Family Law Answers for Real Life” on demand at:
http://www.blogtalkradio.com/lisatose

We live in Canada but were married in Mexico. Where do we get divorced?

Q:  We were married at a resort in Mexico, but have always lived in Canada.  We’ve separated and now we want a divorce.  Where do we file divorce papers?

If you live in Canada, you should start divorce proceedings in the province in which you live, regardless of where you were married.  To be able to file papers in your province, you will have to have been living there for at least one year prior to starting the divorce process. If you have recently moved to a province, and haven’t yet lived there for one year, you will have to wait to file divorce documents.  Otherwise, the court in your new province will not legally have jurisdiction over your divorce proceeding.   If you travel, or spend time in a few different provinces, the appropriate province for starting the action will be the one in which you mostly, or ordinarily, lived and consider to be your home.   

You are your spouse do not both need to live in the same province to start divorce proceedings.  Often, people will be living in a different province from their spouse when a divorce action is started.  In that situation, either spouse may start the process from within the province in which he or she has been living for at least the past year.

For example, Casey and Rory met each other in a running group in Calgary, Alberta.  They wanted a destination wedding and were married in a beautiful ceremony on the beach in Mexico.  After the wedding, they continued to live in Calgary until they experienced marital difficulties two years ago, when Rory moved to Vancouver.  Now, Casey wants to start the divorce process.  Casey, having lived in Alberta for many years, must file divorce documents in Alberta.  Rory, on the other hand, having lived in British Columbia for the past two years, would have to file divorce documents in British Columbia.  If both Casey and Rory each file divorce documents in the two different provinces, only one action will be allowed to continue.  Generally, the action that continues will be the one that was started first. 

In Canada, divorce law is governed by a federal law called the Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp.).  To read the Divorce Act online, go to Canlii.org . 

Please consult with a lawyer in your own jurisdiction to obtain professional advice on how the law applies to your unique situation.

For even more family law tips & information, listen to Lisa's Radio Program, “Family Law Answers for Real Life” on demand at:
http://www.blogtalkradio.com/lisatose