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An Ontario case set to consider the paternity rights of a sperm donor later this year has many people hoping for some clarification when it comes to the enforceability of sperm and egg donor agreements, says Toronto fertility law lawyer Sara Cohen.
In a recent ruling, a judge turned down a sperm donor’s bid for interim access to a child being raised by his biological mother and her lesbian partner. The matter is set to head to full trial in October to consider the man’s demand for paternity rights.
“This will be one of the top fertility law decisions in Ontario thus far. Unlike some other provinces, Ontario doesn’t have any statute setting out the rights and obligations of a gamete donor,” explains Cohen.
Ultimately, she says, people are hoping that this case will set a precedent in Ontario as to whether a sperm donor agreement or an egg donor agreement are legally enforceable. While Cohen says her first reaction to the recent ruling is that it seems the court made the judgment she was hoping for, she is also concerned about whether the court will uphold the sperm donor agreement.
“Some of the articles on the case mention that there was an agreement between the parties that the donor would donate his gametes in exchange for one of the mothers acting as a gestational carrier on his behalf. I’m curious as to whether the court will deal in its dicta about the legality of such an arrangement, as s. 7 of the Assisted Human Reproduction Act prohibits the selling of gametes in exchange for a service,” says Cohen.
“This will undoubtedly be a precedent-setting decision. However, it remains unclear as to whether the court will make its decision based on enforcing a known sperm donor agreement, the best interests of the child, or a combination of the two. It would be very problematic for any person using donor sperm if the court held that sperm donor agreements are unenforceable, and particularly problematic for members of the LGBT community who are in same-sex relationships,” she adds.
Essentially, says Cohen, there should always be agreements in place to clarify the intentions and obligations of all parties entering into a gamete donation.
“I think this is, to some extent, the perfect case to try. Based on the limited factors that I have read about in the media and the short Reasons for Judgment dated August 2, 2012, there seems to be no pressing concerns about the mothers’ abilities to parent that would influence the court to set aside the sperm donor agreement in favour of the best interests of the child. This may be a case where upholding the sperm donor agreement and the best interests of the child are aligned,” she adds.