Clarify parentage law around sperm, egg, embryo donation

As Ontario announces it will fund more in vitro fertilization procedures, it’s an important time for the province to review — and indeed to clarify — its law around the rights of sperm, egg and embryo donors, Toronto fertility lawyer Sara Cohen tells Global News.

“Unfortunately, the law is not very clear,” she says.

“While we're funding more IVF and talking about making changes to Ontario’s fertility law, there’s a great opportunity to start looking at some of the other areas where we need to change fertility law in Ontario. And this is the number one place we need to make changes.”

During an appearance on the network’s show Focus Ontario, she spoke of the need for Ontario to do what at least two other provinces have already done.

“In Alberta and British Columbia, the law has been amended so that a donor is not a parent only by virtue of that genetic connection,” she tells the program. “But Ontario hasn’t taken it upon itself to change its laws to make it clear that a donor isn’t necessarily a parent.”

Cohen, founder of Fertility Law Canada and a partner at D2Law LLP, says there has already been one case on this issue before the courts, but it settled.

The problem with the existing law is that it could potentially mean that a donor could come back years later and want parental rights, she says.

Cohen, who frequently writes legal agreements between parents and donors, says contracts are needed for the parties involved in this kind of relationship.

“There are so many good reasons to use a known sperm donor … and we want to have laws on the books that make it clear that the donor can’t later come back and say, ‘you know what – I changed my mind now that I see this child, I actually want to be a parent to the child,’” she says.

“And we also want to protect that sperm donor so that the parents can’t say, ‘we need child support from you because we can’t afford this. It’s more expensive than we thought it would be.’”

With an increasing number of children being born through IVF and other reproductive techniques, it’s important to make sure the law with respect to parentage is very clear, she says.

“It is a big turnoff, especially for the donor who can give this beautiful, altruistic gift to somebody else, to donate their sperm to allow them to have the family that they have always been hoping for, but at the end of the day, no lawyer can tell that gentleman that the family couldn’t come back and sue him for chid support,” she says.

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