Friday, March 07, 2014

Sperm Donors - The "Seed" of Legal Liability Has Been Planted In Kansas


In an interesting January, 2014 decision, a Kansas court held that a man who became a sperm donor after answering an ad in Craigslist was the legal father of the child that resulted. He was ordered to pay child support.  

The ad was placed by a lesbian couple unable to afford a doctor-assisted artificial insemination procedure not covered by their insurance policy. 

The couple had been together for eight years at the time they placed an ad soliciting a sperm donour.  They purchased the home insemination kit online and eventually became pregnant.  The couple had the sperm donour sign a parental rights waiver which they presumed would sever all parental rights. 

When they later separated, one of the parties petitioned the state for financial assistance when she sustained injuries that left her unable to work.  The Kansas Department for Children and Families demanded that the sperm donour pay child support when it was revealed in her application that the child had been conceived by artificial insemination.  Notwithstanding this unconventional child-conception method, the department took the position that it routinely sought out the father when a single mother petitioned the state for assistance. 

When the matter made its way to the courts, Judge Mattivi held that the contract that the sperm donour executed with the couple was invalid because of a state law that prescribed ghat only a “donor of semen provided to a licensed physician for use in artificial insemination…is treated in law as if he were not the birth father.”  Thus, because the couple had attempted to circumvent the physician requirement by administering the procedure themselves, and therefore had not followed the letter of the law, the parental waiver was rendered void.  Of course, this decision was underpinned by a strong public policy reasons that affirm “[a] parent may not terminate parental rights by contract…even when the parties have consented.” As a result, the sperm donor was recognized as the father of the child despite his clear and vehement intent not to be treated as such. 

The father plans to appeal this ruling, according to news reports.

Would a decision like this ever be handed down by an Ontario court?  One can only speculate and draw inferences from other provincial laws and rulings.

The way that Ontario’s Family Law Act reads today, with no mention of assisted reproduction, it appears that the provincial legislature has neither envisioned nor even turned its mind to how this increasingly common family planning method may be changing the Canadian legal landscape.  

Instead, Canada has prohibited the purchase and sale of genetic material and opted to criminalize what should ultimately be a provincial health issue.  Indeed, large sections of the Assisted Human Reproduction Act, S.C. 2004, c. 2 have been struck down precisely because it intrudes into provincial jurisdiction.

Almost all aspects of assisted reproduction are illegal in Canada - not only directly profiting from the sale and purchase of genetic material, but also benefitting in an intermediary fashion (i.e., counselling individuals to find surrogates, egg donors, or sperm donors, etc.).  As a result, nearly all sperm used for in vitro fertilization is imported from the United States, a costly and last resort for Canadians unable to conceive on their own. 

Canada's Assisted Human Reproduction Act, S.C. 2004, c. 2, provides as follows:

 (1) No person shall purchase, offer to purchase or advertise for the purchase of sperm or ova from a donor or a person acting on behalf of a donor.
·         Purchase or sale of embryos
(2) No person shall
(a) purchase, offer to purchase or advertise for the purchase of an in vitro embryo; or
(b) sell, offer for sale or advertise for sale an in vitro embryo.

Offence and punishment

60. A person who contravenes any of sections 5 to 7 and 9 is guilty of an offence and
(a) is liable, on conviction on indictment, to a fine not exceeding $500,000 or to imprisonment for a term not exceeding ten years, or to both; or
(b) is liable, on summary conviction, to a fine not exceeding $250,000 or to imprisonment for a term not exceeding four years, or to both.

British Columbia, ever the trend setter, has formulated a legislative “test,” or a rough guideline of sorts, addressing the issue of parentage in assisted reproduction scenarios.  It is found in Section 24 of the BC Family Law Act, which officially came into force on March 18, 2013, replacing its predecessor, the Family Relations Act.

Section 24 of the FLA eliminates the presumption that a child who is born as a result of assisted reproduction is automatically the child of the donor who provided the “reproductive material.” 

Donor not automatically parent
24  (1) If a child is born as a result of assisted reproduction, a donor who provided human reproductive material or an embryo for the assisted reproduction of the child
(a) is not, by reason only of the donation, the child's parent,
(b) may not be declared by a court, by reason only of the donation, to be the child's parent, and
(c) is the child's parent only if determined, under this Part, to be the child's parent.

It appears that the intent of the legislature was to leave it open to the court’s discretion to make a determination of parentage based on the totality of the evidence.  The starting point of the analysis is that the mere donation of “human reproductive material” is not the sine qua non of parentage.  Clearly, a vial of sperm does not a parent make.  There are myriad factors and considerations which ought to be weighed when making this determination.  However, the legislation does not prescribe any indicia of parentage in assisted reproduction scenarios, or any specific bright-line test.  This makes these cases very fact specific and difficult to litigate, and therefore leaves it up to the common law to shore up holes in the legislation. 

Based on the cases that have been litigated in Canada thus far, it would seem that non-arm’s length scenarios in which the donor is known to the mother are rife with the potential for parenthood to displace the presumption of “genetic donor.”  

When the mother personally knows the donor and takes the anonymity out of the equation, what would otherwise be a medically sterile transaction suddenly raises questions with respect to the rights and obligations of the biological father.

This is what occurred in a Montreal case in which a woman asked her ex-boyfriend to impregnate her when she could not afford anonymous sperm donation.  The woman had no intention of the ex-boyfriend playing a paternal role and deliberately raised the girl as a single mother.  Three years later, she died of cancer and left the child in the care of her grandparents.  Despite the father’s limited involvement in the girl’s life, he successfully argued that he was legally her father and won a paternity ruling from the Quebec Court of Appeal.  When leave to appeal was sought, the Supreme Court of Canada declined, and thereby upheld the decision.

The ruling has caused concern for lawyers worried about the spectre of sperm donors asserting access and other parental rights in situations where this involvement was explicitly not intended at the time of the sperm donation..  

In many cases, a mother will select assisted reproduction as a family planning method so as to avoid the familial and legal implications that arise with joint parentage. She has likely gone to great lengths to select a donor who respects and agrees with those intentions.

Shouldn't the law respect that?  

- Ana Kraljevic, Toronto
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