This case involved a woman, M.R.R. who wished to become a parent. She had unsuccessfully tried to conceive a child using donor sperm at a fertility clinic. A friend (and former romantic partner), J.M., offered to donate his sperm via sexual intercourse, and let M.R.R. raise the child as her own. He did so, and a child was conceived and born.
The case arose because M.R.R. was claiming child support from J.M. while J.M. was seeking a declaration that he was not a legal parent to the child.
In Ontario, the Children’s Law Reform Act allows people to apply to the court for declarations that they are not the parent of a particular child. J.M. was seeking such a declaration to clarify the family relationship as well as confirm his obligations. If J.M. was found to be a legal parent, he would have been responsible for paying child support, and would have been able to bring a claim for access to the child.
The Children’s Law Reform Act allows men to donate sperm through sexual intercourse and not become legal parents to any child resulting. However, the Act imposes several requirements on this kind of situation, including that the parties have a written agreement setting out their clear intention that the sperm donor not be a parent of the child to be conceived.
The legislation requires that any such agreement be “pre-conception.” In this case M.R.R. and J.M. had verbally agreed that J.M. would not be the father of the child, but they did not sign a written contract confirming this intention until the child was nearly a year old. One of the central questions the court had to answer was whether this post-birth contract, together with evidence of pre-conception intention, was sufficient to meet the requirements of the legislation.
The court looked at the pattern of communication between the parties including text messages and emails about their intention with respect to parentage. The court acknowledged that parentage in Ontario is now much more based around intention of the parties rather than mere biology. There was no question that J.M. was the biological parent of the child. The legal question was whether the parties had, prior to conceiving the child, actually agreed that what was happening was not a casual sexual relationship that accidentally resulted in a child, but that J.M. was donating his sperm to M.R.R., who would raise the child as a single parent.
The court found that there had been an agreement and a common intention to treat J.M. as a sperm donor who donated sperm through sexual intercourse. Justice Fryer is careful to point out that this decision is not a precedent for the fact that agreements need not be “pre-conception.” When looking at all of the evidence and factors unique to this case there was enough to satisfy the court that there had been an agreement that J.M. would not be a parent to the child.
This case is a good example of the importance of pre-conception agreements. Although J.M. got the outcome he was looking for, it came at significant risk and would have cost him substantially more in legal fees to have a lawyer argue his case in court rather than draft an agreement in advance of his donating sperm.
It’s also worth noting, although it’s not mentioned in the case, that M.R.R. and J.M. had been friends prior to this breakdown in their understanding of their roles and ensuing legal battle. Many people who come to agreements in the context of fertility law are close friends or family, and carefully setting out expectations so that everyone is on the same page can help to protect those important relationships.
Although it can sometimes feel awkward to involve lawyers in an altruistic offer to assist a friend or family member with a fertility matter, it is prudent for all parties to turn their minds to all the ramifications of any fertility matter with an informed professional.