Sperm wars

This essay raises questions about role of sperm donors in children's lives.

When a lesbian couple from Terrace, British Columbia decided they wanted a child of their own, they were pleased that one of their male friends agreed to donate his sperm so that the two women could have a child to share as parents. Before the child was born in October 2006, the donor signed an agreement stating that the lesbian couple would be the parents and that he would consent to their adoption of his child.

I can only presume that pursuant to the gestational carriage agreement entered into by the three of them, that it was agreed that it would be in the best interests of the child to be placed into the immediate permanent custody of the two women after the birth of the child.

The two women were also of the impression that once he made the donation and signed his consent that the two women could adopt the child, he would show no interest in the bringing up of the child. In other words, he would not treat the two women and the child as part of his family even though he was the genetic father of the child.
What the women didn’t know was than many men who sire children, feel a certain attachment to their offspring even if they don’t live with them during their upbringing.

Without qualms, the donor began making frequent visits to the lesbian’s home and referring to the child as ‘his son’ in the community. He also informed his own family of the birth of his son in which they then sent him congratulations and gifts for the birth of his child. To say that the two women weren’t pleased; is an unquestionable understatement.

These are the allegations set out in a statement of claim filed in the Supreme Court of British Columbia. The lesbian couple is now suing the donor for willful infliction of mental suffering and breach of contract, and is asking the court for a restraining order against their former friend.

A genetic parent of a child may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child so I have presumed that the genetic father is making such an application in this particular case.

The case has raised questions about the rights of sperm donors across the country and whether parents should have the power to contract away the rights of children before they are born. Conflicting provincial legislation and a several cases that have been before the courts in the past makes those questions difficult to answer. Most provinces in Canada have not amended their family laws to clarify the rights and responsibilities of sperm donors which makes this case before the B.C., court rather murky.

There is a real problem facing the offspring of sperm donors. Generally such donors don’t know who the recipients are and the recipients don’t know who the donors are so it follows that the offspring are just as much in the dark as are their surrogate parents. This can be a real problem if a child of such a union needs a transplant and he doesn’t know who his father is.

Many children from such unions say they should have a right to know who their parents are and that nobody should be able to withhold information about their genetic origins.

The lesbian couple certainly feel threatened that their parenting is being interfered with 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 needs and wants?

Another element adding to the confusion is the six-year-old Assisted Human Reproduction Act in Canada which makes paying for sperm illegal. As a result, couples are increasingly turning to friends and acquaintances to act as donors, creating a legal and ethical quagmire.

When the act was brought into law and no compensation was allowed, it closed all but one sperm bank in the country. For this reason, if friends start doing things on their own, and you have a female from one province and a male from another, it can create real problems for all parties especially when the father wants to visit his child.

Further, what will a judge decide when he or she learns that the mother is no longer able to carry the financial burden involved in bringing up a child and for this reason, is seeking child support from the father of the child? The father could say that in accordance to the agreement between himself and the mother of his child, she cannot look to him for child support.

The best interest of the child has long been the paramount consideration in determining issues of custody, guardianship, access and protection. The judge could rule that since he shared in bringing the child into this world, he must share in the financial responsibilities that are part and parcel to the upbringing up his child.

This could create even a greater problem for the father if, such as in the case of the two women in B.C., he is prohibited from having any contact with his child.

Years ago when I was practicing law, I represented a mother of two sons. Her two sons were living with the father who in turn refused to permit my client to ever visit them. In court, I argued that for this reason, he was an unfit father and that the two boys should be turned over to their mother and that the father should not have any contact with his two sons until they turn 18 years of age. The court agreed. The court also ordered that he was pay child support to my client.

What the judge in B.C., will have to decided is whether or not, he has the authority to overturn an agreement between the two women and the donor. Judges are rather hesitant about overturning contracts between two or more people if the agreement was done in fairness to all parties and neither side had an unconscionable advantage over the other. But as I said earlier, the interest of the child takes precedence over a contract between the parties. There are some obligations you can’t contract away and one of them is child support. Generally, parents cannot sign away a child's right to a father or mother. Further, adoption is a unique creature of law in that the adoption order creates a new legal relationship between the adopter (the mother) and the sperm donor.

In 2007, the Supreme Court of Canada upheld a decision by the Alberta Court of Appeal that is considered by many observers to be precedent setting. The case involved a woman who wanted to be a mother while her common-law husband had no interest in fathering a child but wanted to stay in the relationship. The couple signed an agreement whereby the woman would have a baby ---using sperm from a donor --- but the man would have no parental responsibilities. The court found that such a non-parent contract contradicted the Alberta Family Law Act and that the man, even though he wasn't the sperm donor, would have parental responsibilities if he continued to live in a relationship of interdependence with the mother.

The reason for this decision is that when a man lives with a woman who has a child of her own, after a period of time, he, by the laws of Canada, assumes the responsibility of supporting the child. In Canada, if an unmarried man and unmarried woman live together for three years, they are deemed to be married. In other words, the man can’t enjoy the benefits of family life and not help the mother of the child in bringing up the child and contributing towards the financial upkeep of the child.

This is public policy that is adhered to by the courts in Canada.

Now obviously, if a man who isn’t the biological father of a child whose mother he isn’t living with but visits her often and even sleeps with her on occasion; he is off the hook because he is not living with her in a common-law relationship.

In effect, what the courts are doing is looking at these cases both at a general societal level and what impact their rulings will have on societal values and rights of kids, and how the rulings will affect the children in question.

In a case with echoes of the B.C., matter, the Irish Supreme Court ruled last December that a gay man who donated his sperm to a lesbian couple should be allowed to see his three-year-old son regularly. The Irish Constitution does not permit gay marriage and defines parents as a married man and woman. Because Irish law identified the 47-year-old man as the father, the court ruled he had a right to have a relationship with his son, who was born in 2006, even though it acknowledged that the female couple provided a stable and loving home for the child.

The man in B.C., told the court he had agreed to donate sperm to the lesbian couple, who were his good friends at the time, on the basis that he would be treated like an uncle when the child was born. However, after the birth, the man's relationship with the couple deteriorated as he began intrusing into their lives and the life of their child.

Since the non-biological mother did not go through the formal adoption process (for reasons unknown), the father of the child is still in the grey area of being a parent and as such, it would appear on the surface that he has parental rights.

Although, that in one sense is a good thing because a child should know who is father is and relate to his father. If the child was officially adopted, that may have changed his position. He might not have the right to have contact with his child.

There are the feelings of the lesbian couple that can’t be ignored. If they don't want the father around, he's got no right to be around or interacting with that child especially when there was an agreement to that effect.

Still, the child should have the right to know his biological father and that is what the court must decide upon

Obviously the legal systems in both Canada and the United States have not kept pace with how donors and their offspring are redefining parenting when they mutually consent to meet, an increasing trend.

Despite that, here are many recipients of donor sperm who don't tell their kids about where they came from, but for the donor offspring, it might be very important for them to connect to their biological fathers.

Excluding single women or lesbians from donor insemination programs not only contravenes their equality rights, it also puts their health at risk by forcing then to resort to seeking sperm donors who might make demands upon them while heterosexual women in traditional marital relationships have access to safe and effective procedures in which a third party (the donor) is not in the picture. In both situations there is a strong desire by the women to have a child. But if they have no male partner who is fertile; there is in fact no greater medical need in a woman whose female partner has no sperm that in a woman who has no male partner.

Many years ago, I was friends with two lesbians. They were both very beautiful and quite nice ladies. One day, Anne, one of them approached me and asked me if I would father a child with her lesbian partner. The prospect of going to bed with her partner intrigued me because despite what many people think, lesbians can also be great lovers with men also. I finally decided not to do it for two reasons. One, I could later be forced to pay child support for a child I would rarely see if they moved away. And second, I didn’t want to wonder what my unseen child was going to be like as it grew up. I remained friends with them until the one who propositioned me was murdered by the brother of the other one. Ironically, while she was being murdered, his lesbian partner was with me in my own home that night. It is unlikely that the brother of the one that was with me that night would have killed her lesbian partner if she was with her at their own home that night. That is what we call an unfortunate turn of events. The surviving partner eventually did have a child but it wasn't mine because I used protective measures those days before I was married in 1976.

If a donor service is to be available, women should be treated equally, unless there is good evidence that the best interests of the child will suffer. Current practice is inequitable and reflects discriminatory attitudes. The same standards of access to donor insemination should apply to all women choosing this route to pregnancy and parenthood, to ensure that all can do so safely.

I believe that it is wrong to forbid single women and lesbians access to donor insemination on the basis of social factors while others are permitted to use them. Using criteria such as a woman’s marital status or sexual orientation to determine access to donor insemination based on historical prejudices and stereotypes, truly amounts to discrimination as defined under human rights law and it contravenes the guiding principle of equality.

For women to seek out private sperm donors is to incur the risk of infection of passing onto their child, an inheritable disease. There was in 2008, as many as 33.4 million people worldwide carrying the HIV virus in their bodies. Thalassemia may be transmitted in semen and there are an estimated 60-80 million people in the world who carry the beta thalassemia trait. A woman who goes to a registered sperm bank, has a better chance of not developing medical problems for herself or her child later because these banks screen every potential donor for genetically inheritable diseases and infectious diseases that may be transmitted through sperm. It is for this reason that they choose their donors with care and seek assurances from their donors by medical tests that they are free from infection and deficiencies that can result in the offspring being physically or mentally deformed.

The welfare of the child cannot, therefore, be determined as an isolated fact and the natural parent’s right to access must be included in the court’s consideration of all of the circumstances in each case.

This case before the B.C. court is a complicated one. The judge hearing the case must ask himself or herself this rhetorical question. If a child is a product of the donor’s genetic material, and the gestational carrier has objections of the genetic father’s participation in the upbringing of his child, shall the court nevertheless make an order declaring the genetic donor to be a participating father of the child?

The judge must look at a number of factors before making a decision. First, does the Agreement specifically state that once the child is born, the genetic father will not have access to the child. If it so states that, then the judge’s decision will be an easy one to make. The genetic father is out of the picture. However, if no such stipulation was in the written agreement, then the judge must consider other aspects of the party’s request. Was there a verbal understanding that the father can visit the child? In not, then again, the father is out of the picture.

The real difficulty the court faces is; does a genetic father have a right to visit his own child against the wishes of the carrier mother? And more importantly, is it in the best interests of the child that he have no contact with his father?

I am sure that questions like that have faced jurists in the USA when the child is living with lesbian or homosexual couples. Some people will argue that a child should have both a mother and father to help bring the child up but such an argument, although worthy, doesn’t necessarily mean that a child who is brought up by only one parent will not be brought up properly. I was brought up solely by my mother when I wasn’t in foster homes and I know people who were brought up soley by their fathers and they too turned out alright.

Occupying a more middle ground is the law of England and Wales. Genetic parents can apply for a court declaration (a “parental order”) that they are the legal parents of a child born from a surrogacy arrangement: Human Fertilisation and Embryology Act 1990, (c. 37), section 30. The order must be sought within six months after the birth of the child. As in Canada, no payment of any kind may pass to the surrogate mother or father.

In recent years, the use of assisted reproduction has risen dramatically in the United States, allowing individuals who face various reproductive challenges, including infertility or absence of a heterosexual partner, to conceive biological children. While assisted reproduction has expanded to meet the needs of these parents, the legal system remains years behind, often leading to complicated child custody disputes between the parties. State legislatures have responded to the call for increased regulation of legal parentage in assisted reproduction in varying ways, although one popular statutory approach requires a known sperm provider to preserve his intention to parent in a written agreement with the woman.

There was recent case decided by the Kansas Supreme Court, In Re K.M.H., where the court enforced a written agreement statute against a sperm provider despite his equal protection and due process challenges. In Kansas, the law draws a gender-based line between a female sperm recipient and a male sperm donor for an artificial insemination. By operation of the statute, the female is a potential parent or actual parent under all circumstances; by operation of the same statute, the male will never be a potential parent or actual parent unless there is a written agreement to that effect with the female. The court in B.C., doesn’t have a Canadian case to refer to and may find the Kansas case helpful in making its decision. The judge may rule (just as the Kansas court did) that the male's ability to insist on father status effectively disappears once he donates his sperm to the recipient mother.

In Oregon, its statute, K.S.A. 38-1114(f) envisions that both married and unmarried women may become parents without engaging in sexual intercourse, either because of personal choice or because a husband or partner is infertile, impotent, or ill. It encourages men who are able and willing to donate sperm to such women by protecting the men from later unwanted claims for support from the mothers or the children. It protects women recipients as well, preventing potential claims of donors to parental rights and responsibilities, in the absence of an agreement. Its requirement that any such agreement be in writing enhances predictability, clarity, and enforceability. Although the timing of entry into a written agreement is not set out explicitly, the design of the statute implicitly encourages early resolution of the elemental question of whether a donor will have parental rights. Effectively, the parties must decide whether they will enter into a written agreement before any donation is made, while there is still balanced bargaining power on both sides of the parenting equation.

Unfortunately, I am not privy to the Agreement signed by the parties in B.C., but I am presuming that there was nothing in it that stated that the sperm donor would have access rights to his child.

There doesn’t appear to be any suggestion that the sperm donor is paying child support to the mother so I find it outrageous that he would be seeking privileges that normally would not be given to a father who doesn’t contribute financial assistance towards the support of his child.

Based on what has been made public in this matter, I believe that the sperm donor’s role in this matter was concluded the moment he donated his sperm and if nothing in the Agreement stated that he had parental rights as a father, his case will succumb to the dustbin and the two women will win their case. The only issue then before the judge will be the amount of their award against a man who appears on the surface to simply be a constant pest.

Although, I don’t know what this man’s origin is; this brings to mind that old adage, “Beware of Greeks bearing gifts.” Once you open a gate to a relationship, it is a gate that is hard to close.