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Case highlights need for sperm donor clarification

A gap in Ontario fertility law remains after a groundbreaking lawsuit was suddenly settled, leaving lingering questions over rights of sperm donors and the parents they assist, says Toronto fertility lawyer Sara Cohen.

A two-year-old boy is at the centre of the case, which deals with a northern Ontario sperm donor and the boy’s parents – a lesbian couple, the National Post reports. After months of litigation and just before a scheduled trial, the case was recently settled, the report says.

The man had signed an agreement that he would have nothing to do with his genetic offspring, but he had second thoughts after the baby was born. He felt the biological mother had reneged on her part of their deal and asked the courts to recognize him as the father, providing liberal access, the Post reports.

The case was expected to clarify the legal murkiness around the rights of sperm donors, with only B.C., Alberta and Quebec having legislation that states donating sperm does not equate to being a parent, the report says.

“I am surprised the case settled so quickly, and for the terms on which it settled. For the greater public, it leaves us no further ahead in gaining certainty as to whether a sperm donor agreement or egg donor agreement will be upheld,” says Cohen.

“I was surprised that the donor would go to the lengths he had to gain access to the child and then give up at that point. Although I don’t know anything for certain as I did not act on behalf of any of the parties, it seemed to me to be one of the situations where you wonder if access to justice is what made the difference here.”

Cohen says the question of whether being a sperm donor means being a parent in Ontario and the need for legal reform remains.

“I think we need some clarity on this issue for the benefit of everyone involved, but mostly for the benefit of the children born through egg, sperm and embryo donation,” she says. “For example, I think more intended parents would consider using known donor gametes instead of anonymous donor gametes if they were more secure that the donor could not come and seek access to their child as was done in this case.”

Currently, in Ontario, there is a presumption that the woman carrying a baby is the mother and if she is married, he or she is presumed to be the other parent, says Cohen.

“So we assume if a woman uses donor eggs, for example, and carries the baby, she is a mom. But it doesn’t mean this isn’t open to challenges.”

Provincial legislation is ultimately needed on the issue, Cohen says, though she notes the lack of rules in this area have benefitted some.

“The Ontario courts have taken rather forward thinking stances and allowed three-parent families and other non-traditional arrangements that could potentially be prohibited if legislation was enacted,” she says.

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