Sperm Donor Makes Claim to Lesbian Couple’s Child

by Kilian Melloy

EDGE Staff Reporter

Monday January 11, 2010

A Canadian lesbian couple and the sperm donor who helped them conceive are in a feud over parental rights--and at the forefront of family law.

Because Canadian law does not permit monetary exchange for sperm donations, all but one of the nation's sperm banks have shut down. That leaves lesbian couples that wish to conceive on their own to find a donor, but when they solicit genetic material from friends, they sometimes find themselves entering a legal quagmire.

In the case of the British Columbia couple, who obtained a donation from a male friend, the initial agreement was that the man would relinquish his rights as a father. But when the man began to come around often and to refer to the baby boy as his son, the couple saw it as a breach of contract and took him to court.

The outcome could have lasting repercussions for family law in cases where a child is conceived using donated sperm. The lack of existing law and precedent makes for "murky situations," according to Infertility Network executive director Diane Allen, reported the Canadian National Post on Jan. 8. Allen cited children of sperm donors who say that they have a right to know about their biological heritage--and to form relationships with their fathers.

"For the lesbian couple, I can certainly understand why they feel threatened and that their parenting is being interfered with," Allen told the media. "But what are they going to tell that child down the road? Are they going to say they didn't want the child's father in his life? What about what the child's needs and wants?"

When the Assisted Human Reproduction Act outlawed monetary exchange for sperm donations six years ago, Canadian Fertility and Andrology Society spokesperson Dr. Roger Pierson said, "it closed all but one sperm bank in the country. So if friends start doing things on their own, and you have a female from one province and a male from another, it can be problematic."

Judges who rule in such cases are "going to look at public policy and whether what's being done is contrary to that," according to McGill Center for Medicine, Ethics, and Law director Margaret Somerville. "There are just some obligations that you can't contract away. They are also going to look at what's in the best interests of the particular child," added Somerville. "In effect, what they're doing is looking at these cases both at a general societal level and what impact the ruling will have on societal values and rights of kids, and how the ruling will affect the child in question."

One of the country's few precedents involves a common law couple in which the male partner did not wish to accept the legal responsibilities of fatherhood. The woman conceived using donated sperm, with an understanding that the child would be the woman's sole responsibility--but when the couple went to court, the man was found to be liable for parental responsibilities as long as he remained in a relationship with the woman. The Supreme Court of Canada found that, "The 'settled intention' to remain in a close, albeit unmarried, relationship thrust [the man] from a practical and realistic point of view, into the role of parent of this child," and added, "Can it seriously be contended that he will ignore the child when it cries? When it needs to be fed? When it stumbles?"

The case is complicated by a lack of legal adoption on the part of the mother's same-sex partner. But some see the biological father's willingness to be involved as a positive thing: said family law attorney Kathleen Walker, "From a practical point of view, I think that it's a good thing the father has an interest in the child. I think the more people that love a child, the better off the child is.

"If the child has been adopted, then I think the issue is privacy," Walker continued. "If the lesbian couple don't want the father around, he's got no right to be around or interacting with that child."

Not all legal scholars agree. A case that went to the Irish Supreme Court last year resulted in a ruling that the biological father, a donor to a lesbian couple, should be permitted visitation privileges--in part because marriage equality is banned in Ireland, and Irish law defines parents as married heterosexuals.

In contrast, in the United States, family law may become even more complex: a court ruling opened the way for a New Jersey surrogate mother to pursue primary custody of the twin girls she bore--even though the children carried by the surrogate were conceived with another woman's donated egg, and the egg was fertilized with sperm from the surrogate's brother-in-law, meaning that the surrogate in this case bears no genetic relationship to the resulting child. The woman had carried the children for a male couple, one member of whom was her brother.

The girls were born in October of 2006, and were given into the care of the male couple, who live in Jersey City. But the following March, the surrogate took her brother and his husband to court, claiming she had been forced to serve as the surrogate and seeking custody of the girls.

The court decision drew on precedent established in a 1988 case involving a traditional surrogate, whose own egg was fertilized in vivo through artificial insemination using sperm from a man who was part of a couple seeking to become parents. That case was settled by the New Jersey Supreme Court, which upheld the traditional surrogate's rights as the genetic parent.

"The surrogacy contract is based on principles that are directly contrary to the objectives of our laws," the 1988 ruling said. "It guarantees the separation of a child from its mother; it looks to adoption regardless of suitability; it totally ignores the child; it takes the child from the mother regardless of her wishes and maternal fitness."

Superior Court Judge Francis B. Schultz referred to the earlier ruling, posing the question in his decision, "Would it really make any difference if the word 'gestational' was substituted for the word 'surrogacy' in the above quotation? I think not."

Kilian Melloy serves as EDGE Media Network's Assistant Arts Editor. He also reviews theater for WBUR. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.

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