Sperm Donor Makes Claim to Lesbian Couple’s Child
A Canadian lesbian couple and the sperm donor who helped them conceive are in a feud over parental rights--and at the forefront of family law.
Because Canadian law does not permit monetary exchange for sperm donations, all but one of the nation’s sperm banks have shut down. That leaves lesbian couples that wish to conceive on their own to find a donor, but when they solicit genetic material from friends, they sometimes find themselves entering a legal quagmire.
In the case of the British Columbia couple, who obtained a donation from a male friend, the initial agreement was that the man would relinquish his rights as a father. But when the man began to come around often and to refer to the baby boy as his son, the couple saw it as a breach of contract and took him to court.
The outcome could have lasting repercussions for family law in cases where a child is conceived using donated sperm. The lack of existing law and precedent makes for "murky situations," according to Infertility Network executive director Diane Allen, reported the Canadian National Post on Jan. 8. Allen cited children of sperm donors who say that they have a right to know about their biological heritage--and to form relationships with their fathers.
"For the lesbian couple, I can certainly understand why they feel threatened and that their parenting is being interfered with," Allen told the media. "But what are they going to tell that child down the road? Are they going to say they didn’t want the child’s father in his life? What about what the child’s needs and wants?"
When the Assisted Human Reproduction Act outlawed monetary exchange for sperm donations six years ago, Canadian Fertility and Andrology Society spokesperson Dr. Roger Pierson said, "it closed all but one sperm bank in the country. So if friends start doing things on their own, and you have a female from one province and a male from another, it can be problematic."
Judges who rule in such cases are "going to look at public policy and whether what’s being done is contrary to that," according to McGill Center for Medicine, Ethics, and Law director Margaret Somerville. "There are just some obligations that you can’t contract away. They are also going to look at what’s in the best interests of the particular child," added Somerville. "In effect, what they’re doing is looking at these cases both at a general societal level and what impact the ruling will have on societal values and rights of kids, and how the ruling will affect the child in question."
One of the country’s few precedents involves a common law couple in which the male partner did not wish to accept the legal responsibilities of fatherhood. The woman conceived using donated sperm, with an understanding that the child would be the woman’s sole responsibility--but when the couple went to court, the man was found to be liable for parental responsibilities as long as he remained in a relationship with the woman. The Supreme Court of Canada found that, "The ’settled intention’ to remain in a close, albeit unmarried, relationship thrust [the man] from a practical and realistic point of view, into the role of parent of this child," and added, "Can it seriously be contended that he will ignore the child when it cries? When it needs to be fed? When it stumbles?"