As it stands today, there are three types of sperm donations in Canada:

1. Anonymous;
2. Identity disclosed; and
3. Known.

These three types of sperm donations present their own benefits and drawbacks to the donor, the intended parents, and the resulting children.

1. Anonymous Donation

Although health and physical information is divulged, With anonymous donation the identity of the sperm donor is kept strictly confidential from the recipients and resulting children.

2. ID Disclosed (Open ID) Donation

ID disclosed donation leaves the door opened to children resulting from the donation to contact the biological father.  While donors are not expected to have social contact with registered children until they are 18, the donors are, at a minimum, obligated to provide an update of their family medical history.  Any other information or contact is strictly optional and at the donor’s discretion.

For anonymous or ID disclosed donations, Health Canada regulations prohibits the following men from participating in semen donation:

1. Men over the age of 40; and
2. Any man who has had sex with another man, even once, since 1977.

Known sperm donors can bypass both of these exclusions.

3.     Known Donation

A known donor can be a friend or family member of the intended parent(s).  It is the only viable option for gay men wanting to assist other intended parents who wish to build a family as they can circumvent the Health Canada restrictions on anonymous or ID disclosed donations.

Because a known donor can be a relative of one of the intended parents, it allows parents-to-be in need of third party gametes to have a genetically-related child.  Of course, known sperm donation also raises many difficult moral and ethical questions.  For instance, should a father donate sperm to his son?  Known donation also allows the parent(s) to select a donor of a certain ethnicity or cultural background that may be unavailable through anonymous or ID disclosed donor selection.

Making the Cut

The application process for sperm donation is the same for all donors.  The sperm donor application takes about 6-8 months.  On average, the sperm donor produces 10-15 vials of semen.  The process is as follows:

1. The donor is screened for infectious disease, undergoes a general physical examination and provides a full medical history.
2. The sperm quality is assessed to ensure it can be used during fertilization.
3. The sperm is frozen for 6-months as required by Health Canada regulations, after which the sperm donor provides further blood samples for a final disease check. (Sperm is only quarantined if the donor is not in a sexual relationship with the recipient).
4. The semen is stored for general (anonymous donor or ID disclosed donor) or private (known donor) use and shipped to the recipient parent’s clinic.

The Price of Sperm

A vial of sperm costs on average between $400 and $800.  The cost of known donations is about 50% less than anonymous, or ID disclosed donations.  Sperm vials do not have to be purchased, and sperm can be used in any subsequent pregnancy attempts without having to repeat the entire selection process and pay for associated costs.

In addition to the cost of sperm, recipients should plan to pay about $300 per intrauterine insemination (IUI).  In IUI, washed and filtered sperm are injected into the uterus when a woman is ovulating.  The procedure can be performed by a family doctor.

Sperm Donor Identity

Should the identity of sperm donors be made available upon request?  This crucial and complex question is still being widely debated in Canada, most recently in British Columbia, where a young woman conceived using donor sperm is seeking to have the identity of her donor father revealed, contrary to the position of the B.C. government.  The Supreme Court of Canada will decide this case and the fall-out of the decision will be wide-reaching.  Read more about this case.

Like any issue worth debating, there are two sides to the argument.  Some take the position that the majority of donors who participate in the program rely on the anonymity, and that mandating identity disclosure will discourage potential donors, thereby depleting Canada’s already woefully low supply of local sperm.  Others argue on behalf of the child, stating that children of assisted reproduction have a right to know their biological parents or background, as do adopted children.  Others who take a more middle ground argue that the private agreements between donor and recipient should define identity revelation and parental involvement in the child’s life.

Legal Differences and Legislative Trends

There are significant legal differences between anonymous, ID disclosed and known sperm donation in terms of parental rights.  Further, these rights vary from province to province depending on the legislative scheme.  For instance, the legal parentage provisions in British Columbia’s new Family Law Act, which became law in November 2011, deal specifically with parentage in situations of assisted conception (defined as “a method of conceiving a child other than by sexual intercourse”) and state in section 24 that a sperm donor is not, by reason only of his donation, a legal parent.  In addition, section 27(3) states that, in addition to the child’s birth mother, a person who was married to, or in a marriage-like relationship with, the child’s birth mother when the child was conceived is also the child’s parent provided that the person consented to being the child’s parent.

British Columbia’s legislation follows an important national and international trend towards affirming that in the context of assisted reproduction, the genetic link between donor and the child does not constitute a claim to parenthood.  Alberta (section 7(4) of the Family Law Act) and Quebec (article 538.2 of the Civil Code) also have legislation clearly stating that a sperm donor is not a legal parent and that the child’s second parent in cases of assisted reproduction is the mother’s partner.

Ontario’s Family Law Act has not undergone the necessary reform.  However, the parental rights of a known sperm donor will be tested in the Ontario courts in the summer of 2013.

If you require legal assistance in matters of known or ID disclosed sperm donor agreements, please contact us at (416) 428-5511 or info@flowerdaylaw.ca.