“Follow the money” is a battle cry for investigative journalists seeking to uncover political corruption and other scandals. Similarly, when it comes to finding someone to pay child support, the traditional principle has always been “follow the sperm.” Find the bio-dad, and you’ve hit pay dirt. Nowadays, however, modern reproductive technology has changed the landscape. Simply following the sperm is no longer a guaranteed path to child support. It might work, but it might not. The only thing for sure is that the law in this area has become quite murky.

In the old days a bio-dad could generally not escape child support obligations. The child was his, plain and simple, therefore he had to provide support financially. Now, in the age of the modern family, the bio-dad may well be nothing more than a mere donor of genetic material. For example, a lesbian couple might decide to obtain sperm from a friend or acquaintance, on the mutual understanding that he will have little or no contact with the child, and he won’t ever be expected to pony up cash.

He would, apparently, be protected from a child support claim in British Columbia, thanks to a recent amendment to that province’s Family Law Act. Section 24 of this statute says that a donor who provides human reproductive material, or an embryo, for the assisted reproduction of the child, “is not, by reason only of the donation, the child’s parent.”

By contrast, in Ontario there is no such statutory protection for a mere donor. To make matters worse — or better, depending on your point of view — there is case law suggesting that mere donors are not immune to child support claims. In the 2009 case of C. (M.A.) v. K. (M.) Justice Marion Cohen of the Ontario Court of Justice ruled that the contracts typically entered into with sperm donors, which often say, among other things, that the donor is not liable for child support, are not “domestic contracts” under the province’s family law legislation. Even if they were, their provisions, including any waiver of child support, can be trumped by the paramountcy of the best interests of a child.

True, this case was not about trying to get child support from a sperm donor — in fact, it was the opposite. A lesbian couple had obtained sperm from a friend, and the three participated in parenting the child.  As time went on, however, the relationship soured and eventually the women sought to dispense with the man’s consent to a step-parent adoption, thereby squeezing him out. No, ruled the court. A child’s best interest is always paramount, and this child had a stable, healthy relationship with her bio-dad. “That relationship,” ruled Justice Cohen, “needs to be preserved.”

This doesn’t mean that in every case where there is a known sperm donor, his consent will not be dispensed with regarding the step-parent adoption; rather, it means that the waivers and releases made in sperm donor contracts may well not be upheld by a court. Therefore, these “donor agreements” are not sufficient protections for your clients — whoever they may be — in this type of scenario.

Are donor agreements better than nothing? Probably. Nevertheless, clients need to be made well aware that these types of agreements are not enforceable, and accordingly they provide no guarantee of the waivers and releases they contain. Moreover, it works both ways — just as a sperm donor is not necessarily protected against a child support claim by the sperm recipients, the recipients are not necessarily protected against a child access claim by the donor.

If a sperm donor might be forced to pay child support (in Ontario at least), would it not therefore follow that an egg donor would have the same potential liability? Let us consider the following: Woman “A” is a single woman who receives an egg from Woman “B”; the egg is fertilized with sperm, and Woman “A” carries and gestates the embryo. The intent throughout the sperm and egg donation arrangements is that Woman “A” will raise the child on her own. Then Woman “A” falls on hard times. Do the sperm donor and the egg donor have the same potential liability to pay child support?

The answer, one might expect, should be a resounding yes. Why not? After all, what’s good for the goose is good for the gander. Except for one thing: Woman “A” spent nine months gestating and carrying the fetus. Could one not argue that this “intervening layer” of birthing the child shields the egg donor more than the sperm donor? In other words, Woman “A” is the birth mother, so how can she pin financial responsibility on another female?

This is a very interesting question, and if anyone reading this has a definitive answer, please let us know. In the meantime, perhaps the Ontario legislature can make things easier and, like British Columbia, make these types of questions moot by legislating the appropriate protections for sperm and egg donors and recipients alike!

 

Bill Rogers is a Toronto lawyer and blogger covering family law and fertility law issues, and a columnist for the Medical Post covering the law of malpractice.

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