Donor Conception: Legal Concerns

Created: Nov 23/13


Payment to donors

Canada: Under the 2004 Assisted Human Reproduction (AHR) Act, it is illegal to:

  • pay, offer to pay, or advertise payment, for sperm or eggs. ‘Egg sharing', in which a donor has some/all of their treatment costs covered by donating some of their eggs/sperm/embryos, is considered a form of payment and is not allowed. However, a donor can be reimbursed for legitimate expenditures directly related to the act of donation, in accordance with regulations and a license, and upon providing a receipt for the expenditure.
  • obtain, or use, any sperm/eggs from a donor under 18, except to preserve the sperm/eggs for the purpose of creating a child who will be raised by the donor.

Criminal penalty: A fine of up to $500,000 and up to 10 years in jail. This ban is in keeping with the ban on organ trafficking & with AHR laws in almost all other western industrialized nations (except for the USA where AHR is almost completely unregulated & market forces prevail).

Legal recognition of parenthood

In many Canadian provinces (including Ontario), there are currently no laws regarding the status of the parties involved (donors, parents, children), i.e. no legislation to:

  • guarantee that the non-biological parent (i.e. the social father or female co-parent in the case of lesbian parents) is the legal parent.
  • clarify the rights or responsibilities of donors towards the children conceived through their anonymously donated sperm.

Custody cases involving donor-conceived children have been rare, but have usually resulted in the social parent who has raised the child being given the same consideration as the biological parent. Non-conceiving partners in lesbian relationships are less assured of their legal rights; therefore, such partners may wish to consider either privately adopting their partner's biological child or consulting a family lawyer to develop a parenting agreement. Single women, as the only guardian of their child, should ensure that they have made provision for additional legal guardianship.