07 February 2014

Sperm Donors May Have Obligations of Parents if Family Law Act Definition not Observed

The Lawyers Weekly recently ran a bit of news out of Kansas as a puff piece in their "lawdittities" column. The case in question, however, raises concerns about British Columbians who donate sperm.

In a nutshell, the Kansas case involved a man who had donated sperm to a lesbian couple and was subsequently found to be the father of the child, and therefore obliged to pay child support. This is how the Topeka Capital-Journal explained the decision:
In her written decision, District Court Judge Mary Mattivi said that because William Marotta and the same-sex couple failed to secure the services of a physician during the artificial insemination process, he wasn’t entitled to the same protections given other sperm donors under Kansas law. 
“Kansas law is clear that a 'donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman,' ” Mattivi wrote. 
“In this case, quite simply, the parties failed to conform to the statutory requirements of the Kansas Parentage Act in not enlisting a licensed physician at some point in the artificial insemination process, and the parties’ self-designation of (Marotta) as a sperm donor is insufficient to relieve (Marotta) of parental rights and responsibilities" to the child, the judge concluded.
The suit, by the way, was not brought by the mothers but the Kansas Department for Children and Families.

The point which alarms me is the judge's reasonable conclusion that the donor wasn't protected from parental status because he and the mothers did not follow the process prescribed by the local legislation.

Under ss. 24, 27, 28 and 29 of the new Family Law Act, up to two people who wish to have a child can have that child with assisted reproduction — defined in s. 20 as a means of "conceiving a child other than by sexual intercourse" — and, if they make an agreement prior to conception, they can also specify who the parents of the child will be. Such agreements can make the donors of sperm and eggs parents, along with the people who needed their assistance, and anyone who is a parent is a parent for all purposes of the act. This includes:
  • being a guardian;
  • exercising parental responsibilities;
  • having a schedule of parenting time with the child; and,
  • child support.
Of course, if the couple have used donated sperm or eggs or have an agreement says that the surrogate is not a parent, these rights don't apply and the donor or surrogate will not be obliged to pay child support. Party on.

The critical thing here is, from the point of view of donors of sperm, the need to conceive the without sexual intercourse. Although this rarely happens, it does happen, and so a warning to all men who might be tempted to assist in this manner: if the child is conceived by sexual intercourse, the child will not have been conceived by "artificial reproduction" as defined by the act, and you will be a parent of the child with the liability to pay child support which that status necessarily entails. Like the donor in Kansas, you will have to pay.