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Distinction needed between roles of donor, parent

A U.S. appeal court’s recent move to extend parental rights to a Hollywood actor involved in the life of the child conceived with his donor sperm highlights the need for parties to clearly set out their intentions via a legal agreement before a baby is conceived, Toronto fertility lawyer Sara Cohen tells Vancouver’s CKNW News Talk AM 980.

In an interview with host Simi Sara, Cohen discussed the recent California Court of Appeal decision in the case of actor Jason Patric, who was involved in a legal battle with his ex-girlfriend over his parental rights to a child conceived through IVF with his donor sperm. The Court of Appeal found that Patric's role as a parent, and not his genetic connection via sperm donation, was enough to give him parental rights to the child, notes Cohen.

“You can’t really overstate how important this is for the area of law in which I practice. And I think it’s particularly important that this was a sperm donor, because for some reason, these issues come up with sperm donors far more often than they do with egg donors or embryo donors,” says Cohen.

“The first reaction people are going to have is that they shouldn’t be using a known sperm donor, because they’re going to be scared, and I don’t think that’s what this ruling is actually saying. I think you’ve got to read it carefully. And what this ruling is saying is, California law still stands in California, that if someone is just donating sperm, as a donor, they’re still not a parent, and that’s good law, I think that’s great policy and it helps people to be able to use known donors."

“Had Jason Patric only donated his sperm and that was that, maybe saw the child once in awhile in passing, that’s one thing. But he actually acted like a father here. And I think that you have to keep that distinction clear," she adds.

Depending on the province in which a baby is born, Cohen tells AM 980 that a similar ruling could happen almost anywhere in Canada.

“British Columbia, for example, does have that legislation. It makes it clear – a donor is only a donor and is not a parent without something more. And Jason Patric, in this situation, had that something more, so I think that argument could possibly be made.”

The jury, however, is still out when it comes to sperm donors in Ontario, because of a lack of legislation on the issue, explains Cohen. “What we hope people do is they’re going to enter into a legal agreement before they actually conceive the baby through donor insemination and that will be the best evidence of people’s intention at the time. But do we know that that’s for certain unbreakable and for certain unbreachable? We don’t.”

While Cohen tells AM 980 that the decision is both a good statement of a father’s right and of a donor’s right, she is concerned it could cause some confusion.

“So if you want someone to only be a donor and not be a parent, you’ve got to treat them that way. You can’t do both. In terms of ‘is it applicable for Canadian law’? It's not, but I think it’s a wake-up for all of us to just remember that even where you have legislation that does its best to make it clear to limit the legal relationship between a donor and a child, you can still get around that, or it's still open if you act in certain ways.”


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