Thanks to the growing popularity of DNA home testing kits, more and more people conceived through sperm donation are finding their siblings, half-siblings, and sometimes, their donor.
This has pushed sperm donors‘ rights into the spotlight and raised ethical questions about whether donors should be able to remain anonymous. While there’s no Canadian laws stopping children conceived through sperm donation to search for their donor, it’s important to ask what rights do donors have?
According to Sara Cohen, a fertility law lawyer based in Toronto, there are some federal rules, but donor legislation really depends on the province.
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“You’re choosing to altruistically, and you can’t be paid,’ she told Global News. “It’s federal legislation.”
There’s no limit on how many times your sperm can be used
Since sperm donation is your choice, you can do it as many times as you like. Cohen said there’s also no limit in Canada on how many times a person’s sperm can be used. If Canada was to introduce legislation limiting the number of times one’s sperm is used for fertilization, it would likely have to be done provincially as opposed to federally, Cohen said.
Donating sperm is a quite intensive process, and since there’s no financial compensation, there’s not much incentive. Cohen pointed out that donors have to be in good health, have their blood screened, and be tested for STIs.
“It’s quite a bit of time that people need to take out, quite a bit of testing, and on top of that …. can’t ejaculate certain days prior to donating,” she said. “It’s not this ‘you’re in, you’re out,’ kind of experience that the public anticipates it being.”
While it is illegal to pay someone in Canada for their sperm, a donor can be reimbursed for any travel-related expenses.
Are sperm donors legally parents?
In Ontario, where Cohen practices, sperm donors have no parental rights. This is the same in Alberta and British Columbia, where legislation makes it clear that a sperm donor is not responsible for a child. Legislation is determined provincially, which means many provinces are still up in the air, Cohen said.
“Sperm donation used to be in Ontario, for example, quite legally risky in the sense that there was this idea that genetics made someone a father,” Cohen said. “In January 2017, the law changed in Ontario that a donor is not a parent.”
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Even though this legislation makes a clear distinction between a donor and a parent, Cohen said that if you donate sperm through sexual intercourse — as opposed to donating to a bank or through artificial insemination — you might not be protected.
“You can donate sperm through sex in Ontario — which I actually think is a very bad law,” she said. “But for that , you have to have an agreement in place to make it clear, because usually if you have sex, you are a parent.”
Cohen said it’s vital that if you do donate sperm through sex, you have a written agreement prior to the donation that states you are a donor, and not taking on a parental role. Otherwise, you could be responsible for child support.
You can choose to be anonymous if you donate through a sperm bank
Cohen said there are very few people who donate through ReproMed, the country’s main sperm banking facility. She estimates the centre has only about 20 to 40 donors a year.
If you donate through a sperm bank, you can choose to have an open or closed ID, meaning you can allow people conceived using your sperm to contact you once they’re 18, or you can remain anonymous.
But even if you wish to protect your identity, there’s no guarantee of privacy. Since ancestry kits like 23andMe have become more affordable, many people have tracked down their biological family online. There’s plenty of donation-conceived support groups like We Are Donor Conceived and DNA Detectives, that help people find their relatives.
Reaching out to someone you believe to be your sperm donor is not against the law, even if your donor doesn’t like it.
“It’s true that there may be people who donated in the past who really don’t want to be found, and there’s not much you can do about that,” Cohen said. “But Ontario legislation to some extent protects those people because it makes it clear that your genetic relationship doesn’t make you a parent.”
“You can contact whoever you want, but from a legal obligation, if a person is a donor, depending on the province … they have no obligation to the child.”
If you donate sperm to someone you know, it’s good to have a written agreement
Since there are so few donors in Canada, many people end up asking someone they know for sperm. Cohen said people decide to draft up an agreement with their donor to ensure everyone is on the same page, including what information will be shared with the conceived child and what role the donor will play, if any.
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Plus, some people will raise children together even if they aren’t a couple, so outlining who is responsible for what is important. “A lot of people still want to put agreements pen to paper to make it very clear who is a parent and who’s not a parent,” she said.
Will sperm donor rights change in the future?
Cohen said the increased interest in tracking down biological family through DNA testing may affect the way society views sperm donation, and perhaps even the legislation around it.
“There is a big push to have something called a donor registry, and that would likely be a provincial endeavour. Ideally, all the provinces would be working together though to do this,” she said.
“What we have in adoption law right now in Ontario, is when a child reaches the age of majority, they can get information about who their birth parent was, and they are allowed to contact the person — unless the birth parent has put something in the record saying ‘do not contact me.'”
While Cohen said that’s just one possible way of handling sperm donation, she thinks transparency with donor-conceived children is important.
“The people who work in fertility, in general, really promote being honest with children,” she said. “Secrets can come out later, and that can be very difficult for people.”
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