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Answers to Common LGBTQ Legal Questions Regarding Sperm/Egg Donors

Should I or my partner and I use anonymous sperm or sperm from a known donor?

A variety of factors may influence this highly personal decision. Conceiving at home with sperm from a known donor may be simpler and less costly than using anonymously donated sperm at a clinic. However, if you or you and your partner intend to parent with no involvement from the donor, it is safest to use anonymous sperm. If you do use a known donor and do not wish that individual to become the child’s legal parent, do not list the donor on the birth registration and obtain a declaration or an adoption order eliminating parental rights on the donor’s part. With a known donor, only the birth parent will be able to include their particulars on the birth registration. To secure legal recognition for the intended co-parent, an adoption or declaration is necessary.

Does a known sperm/egg donor who is not a legal parent have rights regarding the child?

Laws pertaining to what residual rights sperm/egg donors have to a child born with their genetic material vary across Canada. For example, section 24 (1) of the British Columbia Family Law Act states that a donor of genetic material is not considered to be a parent solely on the basis of the donation. Quebec’s Civil Code, too, provides that donating genetic material does not lead to legal parentage.

Ontario does not have legislation that addresses this issue. It is unclear how an Ontario court would deal with a sperm/egg donor who asserts their right as a parent. It is possible that a known donor may be recognized as a legal parent and found liable for child support.

If you wish to exclude the sperm/egg donor from having any parental claims and responsibilities, it is advisable to clearly state such intentions in a donor contract prior to using their genetic material. While not legally enforceable, a donor agreement may be beneficial to you in a court case resulting from a conflict arising out of the birth of a child. Given the lack of case law in this area, it is unclear how much weight a judge would give to such an agreement given the highly contextual nature of the situation.

I am an HIV negative male. Can I donate my own sperm to conceive a child through AI in a clinical setting?

A directive from Health Canada excludes certain groups from donating sperm for the purposes of insemination. It excludes men who have had sex with men, even once since 1977, from donating semen for insemination. Anyone who is considering donating sperm should consult this document to see if there are other exclusions or provisions which may apply.

However, gay/bisexual men and men who have sex with men (MSM) may ask their physician to apply to the Minister of Health to request permission to use their sperm in the insemination process with a willing surrogate. Such an application had stated requirements. Practically speaking, a bisexual man can donate sperm to aid his sexual partner in conceiving. Moreover, a gay man might show up at a clinic with a surrogate mother or a co-parent and be assumed to be her sexual partner, no questions asked.

The special permission provisions to donate sperm may also be available to HIV positive men where the recipient is known and consents. However, if the donor is HIV positive, the Minister of Health may require other steps or assurances such as having a low viral load, sperm washing, and any other recommendations from your physician before granting permission.