According to Health Canada, infertility affects one in six couples in Canada. You may be thinking about donating your sperm or eggs to help a family member or friend who is among the one in six or in the LGBTT community or single-parent-by-choice. Sperm and egg donations are incredibly generous gifts and will make you a kindred spirit in the lives of these families. Before you start your journey, you will want to consider the emotional, medical, and legal commitments required of you as a donor. Egg donors can find useful information at the referral service surrogacy.ca.
Laws about sperm and egg donation in Canada
Although the courts in Canada have jurisdiction in determining the well-being and protection of children, the laws around assisted reproduction are still emerging.
Whether your donation is for artificial insemination or for in vitro fertilization (IVF) the same legal considerations apply.
Artificial insemination takes place when sperm is injected into the body of a woman to fertilize her eggs. In-vitro fertilization uses sperm to fertilize eggs outside the woman’s body. If fertilization is successful, an embryo results, and this embryo is transferred to the woman’s uterus. In-vitro fertilization technology is also used in egg donation.
The purchase of sperm and eggs is illegal
Sperm and egg donation is legal in Canada, but it is illegal for the recipient (referred to as the intended parent(s) to pay or offer payment in return. A breach of this law can mean a fine of up to $5,000.00 or a prison term of up to 10 years, or both. Your donation must be without any compensation from the intended parents to avoid these potential consequences. The definition of purchase includes any exchange of property or services. That means, no bargaining or bartering for your sperm or eggs either.
My experience working with donors is that their motivation is to help a family member or friend create a family and not to profit, which is what makes them kindred spirits, in my view.
Cost recovery
Donors can have their out-of-pocket expenses covered. For example, you may need to undergo assessments and medical testing not covered by your health plan or you may be required you to take time off paid work and incur travel expenses. The law in Canada does not prohibit the reimbursement of these expenses if you provide a receipt to the intended parent(s). While there are no specific guidelines or regulations governing the reimbursement of these costs, the consensus in the legal community is that they must be reasonable and directly related to your role as a donor.
Protections for donors and intended parents
Another serious legal consideration for you as a donor, especially if you know the intended parents, is to clearly document that you are providing a service and have no intention of having a parental role with any child that is conceived using your sperm or eggs. This documentation is important because family law in Manitoba (and in Canada generally) imposes a financial obligation to support children that are determined to be genetically yours.
For your protection and the protection of the intended parents, it is crucial (and required by some fertility clinics) that you have a legal agreement, referred to as a donation agreement or donorship agreement, that outlines your role and intention as a donor. For your protection, this agreement should state that the intended parents will assume all financial responsibility for the child, regardless of the child’s health.
For the protection of the intended parents, the donation agreement should also state that you, as the donor, will have no parental rights or claims to the child. You are a service provider and your role and involvement end after your sperm or egg donation.
It has been my experience that the intended parents usually have their lawyer prepare the donation agreement, and to avoid any appearance of conflict, will request that an independent lawyer review the agreement with you, the donor, separately. The intended parents can cover your legal fees. My practice is to forward the sperm donor’s statement of account directly to the other lawyer for payment so that the donor doesn’t have to pay the fees up front.
The value of a donorship agreement
While reproduction agreements are a must, you should know that the court is not bound to follow or enforce them. Despite that, a legal agreement still provides value. If the court must decide on parental claims and financial responsibility, the donation agreement will be a key consideration.
Even without the court’s involvement, a donation agreement will provide an enormous benefit for you and the intended parents by providing a clear and concise document of your roles and expectations in this exciting process.
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By Chau Tran
Don’t let the forest of legalese keep you from becoming a kindred spirit. You don’t have to walk through the woods alone. Contact me with any questions you may have.