What are Sperm Donor Agreements?
A sperm donor agreement is a contract between one or more intended parents and a sperm donor, setting out a clear path to all the parties about what will happen, and what rights will arise on the parts of all parties.
Typical clauses in a sperm donor agreement include how the donation will proceed, what the sperm may be used for, and what happens to any unused sperm. Such a contract will normally state that the sperm donor will not be a parent, nor listed on the child’s birth certificate, nor have custody or access to the child. It can set out what, if any, involvement the sperm donor will have in the child’s life. There will be a release for the sperm donor from paying any child support.
It is important to note that the intended parent(s) and the sperm donor have separate legal representation. Typically, the intended parent(s) will have their lawyer prepare the sperm donor agreement, and the sperm donor will take the agreement to a separate lawyer to receive independent legal advice. The sperm donor’s lawyer will go through the agreement with the donor to ensure that he understands it, how it impacts his rights and obligations, and negotiate any needed changes.
As for timing, sperm donor agreements should be entered into prior to conception, to avoid dealing with these issues at the emotionally laden times post conception and post birth.
Does Sperm Donor Law in Canada require Sperm Donor Agreements
Strictly speaking, if one is using assisted reproduction to have a child, under sperm donor law in Canada, one does not need a sperm donor agreement. However, it is recommended to get such an agreement, to ensure that everyone understands and agrees to what will happen, and everyone’s rights and obligations are defined. Typically, a fertility clinic will require a sperm donor to sign an informed consent form, ensuring that he understands what will happen with the sperm he donates.
The Children’s Law Reform Act sets out in section 9 that these agreements are permitted as a type of preconception parentage arrangement. The Act emphasizes the importance of these arrangements being done prior to conception, and generally courts will defer to written preconception arrangements even without a consideration of the child’s best interests.
Sperm Donation via Sexual Intercourse
There is one case where a sperm donor agreement is mandatory under the Children’s Law Reform Act, and that is where sperm donation is via sexual intercourse.
Section 7 of the Children’s Law Reform Act sets out the statutory scheme for determining parentage where a person’s sperm has resulted in the conception of a child. In general, there is a presumption under sperm donor law in Canada that the donor is the parent of a child conceived through sexual intercourse. An exception to this, however, occurs when before the child is conceived the sperm donor and the intended parent enter into a Sperm Donor Agreement. In that case, the sperm donor is not considered a parent.
What if a Sperm Donor Agreement is not entered into prior to Sexual Intercourse?
If a Sperm Donor Agreement is not entered into prior to sexual intercourse, is the sperm donor going to be considered a parent? Not necessarily. In the case of M.R.R. v. J.M., 2017 ONSC 2655 (CanLII), Justice Fryer considered this question. In this case, the sperm donor and the intended parent had a verbal agreement that the intended parent was going to be the child’s only parent, and that the sperm donor would be just a sperm donor. The sperm donor donated through sexual intercourse, after the intended parent’s many attempts with anonymous sperm donations at a fertility clinic failed.
After the child’s birth, the sperm donor repeatedly contacted the mother asking about the child, and told family and friends that he was the child’s father, despite the mother asking him to stop. The mother finally had her lawyer draft an agreement with many of the terms one would find in a Sperm Donor Agreement. The sperm donor hesitated to sign the agreement, and then the mother said she revoked her consent to the agreement. The sperm donor then signed the agreement, but the mother commenced legal proceedings for child support.
The sperm donor brought legal proceedings for a declaration of nonparentage and was successful, primarily on the ground that the parties’ intentions prior to conception were that the sperm donor would just be a sperm donor in the child’s life, and that preconception intentions were what should guide in cases like this. Of particular interest, the judge did not believe that the statutory scheme always required consideration of the child’s best interests, but rather the focus was on preconception intentions.
That being said, relying on an oral agreement or no agreement at all is risky, especially when so much is at stake.