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.

Birth Registration Form Amended: Amendments Problematic

The Vital Statistics Agency has updated its Birth Registration form to reflect the assisted reproduction provisions of Part 3 of the new Family Law Act which allow people to make agreements that say who is and is not the parent of a child, and allows a child to have more than two parents.

Under s. 2 of the Vital Statistics Act, a medical professional present at the birth of a child must notify Vital Statistics Agency of the birth within 48 hours. 

Under s. 3, the parent or parents of a newborn must register the birth with Vital Statistics within 30 days; this is the form which has been updated. The Birth Registration form tells the agency who the parents of the child are, what name has been chosen for the child and the date and place of the child's birth, and is required for the agency to issue a birth certificate.

In the new form, which incidentally can also be used to register children conceived in the traditional manner:

• the birth mother must declare that the child was born as a result of assisted reproduction
• the father must declare that he is not the biological father of the child and was married to or in a marriage-like relationship with the mother at the time the child was conceived
• up to two additional people may be registered as parents of the child, and must declare that their "reproductive material" was used in the conception of the child

So far so good, however there are two problems with the copy of the form I've been able to review.

Surrogate Mothers 

In addition to the donation of eggs or sperm, the Family Law Act allows for surrogacy and lets people to make an agreement that says that the surrogate mother, is not a parent of the child. 

However, the form requires the mother, who must be surrogate mother since she is the one who gave birth to the child, to complete the form when she may not in fact be a parent of the child as a result of an assisted reproduction agreement. And, since the child was carried to term by a surrogate mother, it is unlikely that the intended father is going to be be married to or in marriage-like relationship with her. He's likely going to be in a married or marriage-like relationship with the intended mother.

Now, neither the Vital Statistics Act nor the form say "birth mother," they just say "mother" and "parent." You might think this would allow the intended mother to fill out that part of the form, but there are a few reasons why that won't work. First, without a definition of "mother" or a clear statement of the intention of the form, "mother" must be given its ordinary meaning as a woman who has given birth to a child. Second, the spots available for two other parents, are reserved for people who are not the mother or father, and whose genetic material was used in the conception of the child. That would let the intended mother sign up, assuming her eggs were used, which may not be the case, but it would cut out the father, who is supposed to be married to or in a marriage-like relationship with the birth mother.

There's an easy fix for this. The form could describe the "mother" who fills out the form as the "mother / surrogate mother" and describe the "father" as the "father / intended father." The surrogate mother would check a box if she is not going to be a "parent", which will remove her from registration as a parent. There would be an additional section for an "intended mother", and the form would require the father / intended father to be married to or in a marriage-like relationship with either the mother or intended mother of the child. The form must also be changed to allow an intended mother to be registered as a parent of the child in cases where her eggs were not use to conceive the child and she did not give birth to the child.

Three, Four or Five?

The Family Law Act describes "intended parent" as one or two people who intend to be the parents of a child and make an agreement, prior to conception, that they will be the parents of the child "regardless of whether that person's or those persons' human reproductive material was used in the child's conception." As a result, and bearing in mind the act's provisions for surrogacy, it is possible that there may be two intended parents who may have no genetic connection to the child and neither of whom carried the child to term.

Doing the math, it seems that the Birth Registration form needs another slot for "parent" to accommodate:

• intended parent 1
• intended parent 2
• a donor of eggs
• a donor of sperm 
• a surrogate mother

Thankfully the fix for this is even easier than the fix required for surrogate mothers who do not intend to be a parent of the child they give birth to.

Filling out the Form

The agency intends to make the paper and electronic forms available only to medical professionals, and prefers to steer mothers to their online registration process. The agency will give mothers the paper form that handles both natural and assisted reproduction on request... which is what you'd better do since their online process doesn't accommodate children born of assisted reproduction.

UK to Draft IVF Regulations for Use of Third-Party Mitochondria

On Friday, the BBC reported that the UK government will be developing regulations allowing for the use of third-party mitochondrial DNA in an in vitro fertilization procedure. This is pretty cool; let me explain what that mouthful means.

In vitro fertilization is a major and often last ditch treatment when a woman cannot have a baby. In this treatment, an egg is removed from a woman and fertilized with sperm outside her body, under very carefully controlled conditions. The fertilized egg is then implanted into a woman's uterus, in the hopes that the fertilized egg will develop normally and a healthy baby will be born. This technique is often used when a mother has blocked fallopian tubes, pelvic adhesions or endometriosis or when a father has a low sperm count or sperm with low motility.

Since we're talking about fertilizing an egg without the necessity of sex, this process offers some  nifty possibilities. A lesbian couple can use an egg from one of them with donated sperm to have a baby; a gay couple can use their sperm to fertilize an egg that will be carried to term by a surrogate mother, or a straight couple can use either or both of their eggs and sperm and enlist the help of a surrogate.

The proposed UK regulations would take things one step further and replace the mitochondria from the egg with the mitochondria from another woman. You may remember from your biology class in high school that mitochondria are tiny organelles found inside most of the cells in living things like animals and plants. Mitochondria produce the energy that cells need to live and do the things the cell is meant to do. Without properly functioning mitochondria, the cell will waste and die.

In humans, mitochondria are found inside every cell except for red blood cells, and malfunctioning mitochondria can cause neuromuscular disorders that may result in blindness, heart disease and death. The really neat thing about mitochondria is that they have their own DNA, and the mitochondrial DNA always comes from the egg. In other words, all of the mitochondria in your body have their own genetic code, which is different from your chromosomes, the genetic code which you will pass on to your children, and comes exclusively from your mother.

The IVF technique approved by the British government would take the key parts of the mother's egg, before or after fertilization, and swap them into the egg from a third-party donor with healthy mitochondria before implantation into the body of the woman who will carry the child to term. The child conceived from this method would carry the chromosomes of the mother and the father, and the mitochondria of someone else. This is pretty cool, because all of the important DNA that makes you you comes from the chromosomes of your parents; the DNA of your mitochondria doesn't matter.

Here are two helpful graphics produced by the BBC from its report. In the process illustrated below, the key parts of a fertilized egg are implanted into the fertilized egg from a donor:

BBC News

In this next process, which strikes me as simpler, the key parts of an unfertilized egg are implanted into an egg from a donor.

BBC News

This process won't be available in Canada until it has been approved as a funded procedure under the various provincial health insurance programs. You might want to keep an eye on the website of Health Canada; the Assisted Human Reproduction Agency of Canada was shut down by the federal government on 1 October 2012.