If you are

• A donor who will provide sperm
• A heterosexual couple with sperm-related fertility issues
• A single mother-to-be
• A lesbian couple intending to get pregnant with donated sperm
• A couple in which a trans man is planning to carry a child conceived with donated sperm
• A poly family wanting to ensure that the child’s legal parents are the same as their biological parents
• Considering ‘home insemination’ or donor insemination at a fertility clinic

This section is for you.

A sperm donor is a person who provides their sperm – other than for their own reproductive use – for use in assisted reproduction.

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 is 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.

A donor can be known – meaning the donor is known to the parent, usually a friend or family member.

A donor can also be anonymous – meaning the donor donated the sperm to a sperm bank (such as ReproMed in Toronto, Xytex in Georgia and many others). Many sperm banks now have identity disclosure programs so that there are a subset of donors who agree that when the child is adult, the donor’s name or some form of contact will be provided to the child on request.

Do we need a donor agreement for a known 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 sperm donor is not a parent, a donor insemination agreement is not legally required.

However, there are reasons apart from parentage for choosing to have an agreement. We recommend donor insemination agreements 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 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 is evidence that the child was conceived by sperm donation and not by intercourse, since the legal results are so different.
• If the sperm is being frozen, an agreement will also lay out how the sperm will be used and what will happen with any sperm, or embryos created using the sperm, 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 a sperm donor agreement?

Contact one of the lawyers associated with Fertility Law BC. The Intended Parents and the sperm 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 is that the baby will be born in BC; or make provisions for what happens if the baby is born elsewhere.