BY ANA KRALJEVIC, LAWYER, WISE LAW OFFICE
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:
7. (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?
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