If you are
- A donor who will provide an egg or embryo
- A heterosexual couple with egg related or egg and sperm related fertility issues
- A gay couple or a single dad-to-be having a child with the help of a surrogate
- A single mom-to-be who cannot use her own eggs
- Considering egg or embryo donation
This section is for you.
An egg donor is a person who provides their ova for use by someone else in assisted reproduction. An embryo donor is usually a couple who gives embryos they do not need for their own reproductive use to another person or couple to use to conceive a child.
(Where the egg or embryo is for the person or couple’s own reproductive use, then they are not a donor according to BC’s Family Law Act)
Because eggs must be surgically extracted from the person’s ovaries, a fertility clinic or egg donor bank is always involved in egg and embryo donation. Egg donation is a much more significant health decision than sperm donation is, and it is really important to consider the risks beforehand.
Under BC’s Family Law Act, a donor is not (by reason only of the donation) the child’s parent. Instead, the parents are the birth parent and the person who was married to or in a marriage-like relationship with the birth parent (for this page, the “spouse”) when the child was conceived, unless the spouse did not consent to be the parent or withdrew consent to be the parent prior to conception.
That being said, if the donor, the birth parent, and the birth parent’s spouse make an agreement before conception that they will all be the parents of the child, then they will all be the legal parents. This creates the potential for a child to have more than 2 legal parents.
If there is a dispute or any uncertainty about whether or not a person is a parent, a court application can be made to determine parentage.
Reimbursements
There is a prohibition on paying egg and embryo donors – In Canada, it is illegal to purchase, offer to purchase or advertise for the purchase of eggs from a donor (or a person acting on behalf of a donor). It is also illegal to purchase or sell (or offer or advertise to) an in vitro embryo. It is a criminal offence to do so under the Assisted Human Reproduction Act.
There are regulations, Reimbursement Related to Assisted Human Reproduction Regulations, that govern what can be reimbursed to donors. These set out a process to claim reimbursements. Some reimbursements require a medical referral from doctor, such as for lost wages for the surrogate. A Declaration Form and receipts are required. Health Canada has developed a Guidance Document on the Reimbursement Regulations that describes the rules and includes same Declaration Forms to make reimbursement claims.
Do we need a donor agreement for a known egg or embryo donor?
If the donor is also going to be a parent, then a written multi-parent agreement before conception is required. However, if the donor is not going to be a parent, then because BC’s Family Law Act specifically says that a donor is not a parent, a donor agreement is not legally required. However, many clinic will ask for a “clearance letter” from a lawyer confirming there is an agreement in place before proceeding to ensure the legal requirements have been met.
As well, there are reasons apart from parentage to have an agreement. We strongly recommend donor agreements in all known donor situations because:
- An agreement summarizes the law so everyone is clear and there is no misunderstanding: the donor has no obligation to support the child, and no claim to a parental relationship with the child just because they are a donor.
- An agreements helps everyone involved clarify their expectations about who is going to do what before, during, and after the pregnancy, for example with respect to getting testing for inheritable or transmissible conditions.
- An agreement will lay out the agreement about reimbursing the donor’s expenses.
- An agreement also clarifies expectations about the donor’s role in the child’s life and confidentiality or sharing of information – sometimes, in the course of negotiating an agreement people discover that they have a much different vision of the future. Better to know this now than later.
- Will confirm the parties understand the prohibition respecting payment and will clarify the reimbursements agreed to.
- An agreement will also lay out how what will happen with any eggs or embryos that are not needed.
- An agreement specifies what happens if a baby is born with a birth defect or condition which the donor did, or did not, know about.
- An agreement can specify that the donor can also be listed as parents on the child’s birth certificate.
How do we make an egg or embryo donor agreement?
Contact one of the lawyers associated with Fertility Law BC. The Intended Parents and the egg or embyro donor cannot be represented by the same lawyer. The other party to the agreement should get independent legal advice about the agreement.
Your lawyer will gather information from you and discuss a number of relevant issues that you may not have thought about. They will then draft the agreement, and walk through it in detail with you. Once you are happy with the agreement, the agreement will be provided to the other party and their lawyer. That lawyer will walk the other party through the agreement, and make suggestions for changes, if needed. Once the agreement meets everyone’s needs, the lawyers can facilitate sign-off of the agreement. The lawyer will then send the fertility clinic a “clearance letter” confirming there is a legal agreement in place.
Complications
The laws about who is a parent vary across Canada. So one of the things you will want to be sure about s that the baby will be born in BC; or make provisions for what happens if the baby is born elsewhere.
