Sperm-donors’ rights remain murky after out-of-court settlement in Ontario

Steve Mertl
National Affairs Contributor
Daily Brew

Photo illustration of a sperm bank. A Danish sperm donor has passed a potentially severe genetic disorder to five children after a screening test failed to catch that he had the disease, health officials said.

A case that experts hoped would clarify the rights of sperm donors in Canada has been settled out of court, leaving unclear the legal boundaries around the guy who provides his little swimmers and the parents who use them.

According to the National Post, the lesbian couple being sued by their sperm donor agreed to settle the case shortly before a trial was scheduled to begin.

Under the deal, the northern Ontario man who launched the suit, and his parents, will be allowed a one-time public meeting with his offspring, now two years old, but they can't reveal his relationship to the little boy or even touch him, the Post said.

The parties to the case cannot be identified because of a publication ban, though they were named in previous news reports.

The man launched the suit after having second thoughts about the agreement he'd signed promising to have nothing to do with the child he fathered. He also believed the biological mother, an acquaintance from childhood days, had reneged on her part of their agreement. He sued to be recognized as the father and gain liberal access to his son.

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“This is certainly the right outcome for this loving, bonded and stable family,” Michelle Flowerday, the couple’s lawyer, told he Post in an emailed statement.

“It is always better for litigants to come to a resolution on their own, as opposed to having one imposed upon them by the court.”

The Post said neither the sperm donor nor his lawyer could be reached for comment.

Ontario Superior Court Justice Gregory Ellis issued an order last week declaring the two women were the child's parents and the sperm donor was not the father. He was also barred from contacting the couple or the child after one meeting in the presence of a third party, the Post said.

The absence of a ruling leaves the rights of parents and sperm donors in limbo throughout much of the country. Flowerday told the Post only British Columbia, Alberta and Quebec have legislation spelling out that providing sperm does not confer parental rights on the donor.

Most donations come from sperm banks, where there are generally no problems. But the issue becomes murkier in cases like this one, where people who know each other make private arrangements. Observers were hoping a court decision would bring everyone's rights into focus.

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“I don’t think anybody wants to be a test case,” noted Fiona Kelly, a University of British Columbia law professor who studies the issue, told the Post.

The courts are under pressure to deal with the long-term implications of sperm donations.

A B.C. Appeal Court last year overturned a lower-court ruling that would have given a woman the right to know the identity of the donor who provided sperm for her baby, according to The Canadian Press.

The woman, Olivia Pratten, said she wanted her child to have the same rights as adoptees to know who their birth parents were.