The Sperm Bank Saga: How Parental Rights are Catching Up to Reproductive Technology in Canada

Please note that this post was revised on February 2, 2018.

R(M.R.) v. M(J.) 2017 Carswell 6290

This case provides an example of how the proposed changes to the Children’s Law Reform Act, which ultimately resulted in the All Families Are Equal Act, are to be considered and applied.

Background

The biological mother was trying unsuccessfully to get pregnant at a fertility clinic. She wished to raise her child as a single parent. Eventually she approached a longtime friend and father of three to act as her sperm donor. They both agreed he would not be a parent to the child, discussing this shared intention in a series of texts, and they subsequently conceived through sexual intercourse. Post-birth, the mother had her lawyer draft a contract that confirmed this donor arrangement. Both parties signed it. The mother later brought an application to the court seeking child support.

Analysis

A new bill came into effect on the first day of 2017 in Ontario, called the All Families are Equal Act. This bill amended certain parts of the Children’s Law Reform Act (CLRA) that deal with parentage and recognition of biological parents in a donor context. Specifically, section 5 and 7 of the CLRA were altered to place a narrower scope on what a legal parent is. Where a person provides genetic material (sperm or ova) for the purpose of conception through assisted reproduction, he or she will not be considered a legal parent with its accompanying rights and responsibilities. This is to protect people who conceive using sperm banks or donate to such institutions. Individuals who choose to use a sperm donor to conceive do not want a stranger to later try to assert rights to access and custody. Similarly, donors do not want to be responsible for child support.

The new legislation also creates protections for people who donate their genetic material through sexual intercourse when both parties do not intend for the donor to have parental rights. In this case, where both parties sign a written agreement of their intentions prior to the conception, the donor will have no rights or obligations as a parent to the child, and the courts will defer to this agreement. This scenario relates to the facts of this case.

Here the biological parents could clearly illustrate their initial intention to have the father act solely as a genetic donor. The court noted that although the sperm donor was prima facie a parent within the meaning of section 7(1) of the CLRA, the evidence points to the fact that the parties had an agreement that he would be a sperm donor only, and not a parent to the child. The court commented on the actions and inactions of the parties – specifically that their sexual and social relationship ended after conception, that the sperm donor was not listed as the child’s father on the Statement of Live Birth, and further that the sperm donor only saw the child a handful of times after her birth. With respect to the above, the court issued a declaration that the sperm donor was NOT the child’s parent.

This case is interesting because it highlights how crucial it is for parties to have a written agreement that clearly defines their intentions before a child is conceived:

Decisions as to whether or not to be a parent to a child are far better reached in a dispassionate setting rather than in the emotional place following the conception and birth of the child.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past twelve years (2007 to 2018 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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