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