Creating Your Family Story: Legal Tips for Sperm Donation with Someone You Know in BC
Anonymous vs. Known Sperm Donor? What’s The Difference?
Single women, lesbian or queer couples, and couples facing male-factor infertility often require sperm from a donor to grow their family. Many are familiar with anonymous sperm donors- individuals whose identities are kept confidential by sperm banks. These donors are carefully screened for age, health history, and sperm quality, and you’ll find their profiles in binders or brochures at fertility clinics.
While anonymous donation is common, it’s not the only path to parenthood. In British Columbia, you can choose a “Known Sperm Donor” someone you know personally, such as a friend, family member, or acquaintance. BC’s laws are increasingly supportive of families who wish to make these arrangements, provided the proper steps are taken to clarify legal parentage.
Why Choose A Known Sperm Donor?
Families may opt for a known donor for several reasons:
Legal Considerations: Why Professional Advice Matters
While known donors offer many benefits, they also introduce legal complexities. Consulting a fertility lawyer ensures your intentions are documented and enforceable, protecting everyone involved. DIY agreements or templates may not provide adequate protection and can lead to complications.
This blog post is intended as legal information tailored for those living in BC, and is not advice. Talk to a fertility lawyer before any steps are taken towards starting your family. While I’m a lawyer, I’m not your lawyer (unless I am!), so your outcomes will depend on your unique circumstances, such as your marital status, location, etc.
Are They Still A Donor If We Have Sex?
No, they would be considered a parent, not a donor, here in BC if the child is conceived through sexual intercourse. BUT this will likely be changing in the future.
Currently, Part 3 of the Family Law Act (FLA) sets out who is considered a child’s legal parent in BC. The FLA primarily recognizes sperm donation in the context of “assisted reproduction,” meaning it only makes laws on the conception methods other than sexual intercourse (s. 20(1)).
If a child is conceived through sexual intercourse, the law generally presumes the birth parent and the biological father are the legal parents, according to section 26.1 (Parentage if no assisted reproduction)This means that under the current law, if you conceive through sexual intercourse, the sperm provider is automatically considered the legal father, regardless of any informal agreement you might have had.
This distinction is crucial because legal parentage determines rights and responsibilities, like guardianship, parenting time, and support. So, you must take the proper steps to ensure that your donor is not a legal parent to your child.
However, BC might be changing its laws on this method of conception and its effect on who is a parent. Both the British Columbia Law Institute (BCLI) and the provincial government have put forward a number of proposed changes to the FLA, including conception through intercourse. Such a pre-conception agreement involving sexual intercourse would need to explicitly state that the donor does not intend to be a parent.
Why A Pre-Conception Agreement Is Your Best Friend
Whether you’re using assisted reproduction through a clinic, an at-home kit, or planning to use sexual intercourse for donation once the law changes, a written pre-conception agreement is essential.
Having a signed agreement between you, your partner or partners (if applicable), and the donor helps you by:
1) Having An Agreement Shows Intent
This agreement is where you, your partner(s), and the donor clearly lay out everyone’s intentions regarding parentage before conception occurs. For children conceived through assisted reproduction, the FLA already allows for multiple legal parents (up to five) if there’s a written agreement made before conception (Family Law Act, s. 30). This is also how polyamorous couples with three or more intended parents can establish legal parentage from the start.
2) Agreeing On Everyone’s Roles Avoids Disputes
Life happens, and relationships can change. A clear agreement helps prevent future misunderstandings or disputes about who is a parent, who has parenting time, and who has financial responsibilities. The courts in BC have shown a willingness to uphold the intentions of parties in pre-conception agreements, even using their discretion to declare parentage where there was “uncertainty.”
3) Making An Agreement Can Address Gaps In the Law
As much as we try to move towards the sentiment of “There’s no place for the state in the bedrooms of the nation”, the law hasn’t quite caught up to the diverse ways families are formed. In one notable BC case, the court used its inherent parens patriae jurisdiction to declare a third legal parent in a polyamorous family where conception was through sexual intercourse, recognizing a gap in the FLA for such families (British Columbia Birth Registration No. 2018-XX-XX5815, 2021 BCSC 767). While this shows the court’s ability to act in a child’s best interests, having a clear agreement from the outset is always preferable to relying on judicial intervention.
4) Everyone Receives Legal Advice To Protect Their Rights
While the law doesn’t require the intended parents and the donor to receive independent legal advice, it is strongly advised. Without it, even if there is a signed agreement, there’s a greater risk that its contents won’t withstand a legal challenge. The proposed legislative changes also include a recommendation to require independent legal advice for all parties to these types of agreements. This is a crucial safeguard, ensuring everyone fully understands the complex legal implications before signing.
What to Consider for Your Agreement
When your lawyer is drafting your pre-conception agreement, you’ll be asked many important questions, some of which you might not have considered or discussed. It’s important to discuss your long-term family plans with your partner or partners first. Additionally, group therapy with a licensed mental health professional before conception to help facilitate discussions between the known donor and the parent(s) is also highly recommended.
Here are some key areas to discuss with your donor and partner prior to your legal consultation:
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Essential Precautions
Beyond the pre-conception agreement, there are practical steps to protect everyone involved:
• Mental Health Screening: Just as clinics require, consider screening with a mental health professional for all parties. This ensures everyone is emotionally prepared for the unique dynamics of a known donor arrangement.
• Health Screening: Not required by legislation, unless going through a clinic, but comprehensive STD testing for the donor should be non-negotiable. If using an at-home method, regular testing is crucial.
• Family Health History: Not included in the legislation, but gathering a detailed family health history for the donor, going back at least three generations, to understand any genetic predispositions, is highly recommended. This can be a question to discuss between you and the donor during a group therapy session or through the clinic. Anonymous sperm donors are expected to provide a multiple-generation background of known health conditions during their screening. If you are using a clinic, genetic testing can also be considered, or if your donor consents, an at-home genetic test.
• Reimbursements: Understand what expenses can be legally reimbursed to the donor (e.g., travel, lodging) versus what constitutes prohibited payment. I talk about expenses allowable for egg donors here and surrogates here.
The Bottom Line
Creating a family with a known sperm donor is a deeply personal and rewarding journey. While the legal landscape in British Columbia is evolving, the core principle remains: preparation and clear communication, documented in a robust pre-conception agreement, are your strongest allies. This ensures that everyone’s intentions are respected, and most importantly, that your child’s best interests are protected from day one.
If you’re considering growing your family with a known donor, reach out for legal guidance to ensure your journey is as smooth and secure as possible.
