Friends don’t let friends donate sperm for friends

A man in Kansas donated his sperm to a lesbian couple so they could have a child. Now, even though none of the parties intended it, he has been ordered to pay child support:

Shawnee County District Court Judge Mary Mattivi wrote Wednesday that because a licensed physician was not involved in the artificial insemination process, William Marotta is more than a sperm donor and thus responsible for the child.

The Topeka Capital-Journal reports the Kansas Department for Children and Families filed the case in October 2012 seeking to have the Topeka man declared the father of a girl born to Jennifer Schreiner in 2009.

Marotta argued that he didn’t intend to be the child’s father and signed a contract waiving his parental rights.

Could this happen in Canada? Karin Galldin and Leslie Roberson, writing for Slaw, note that this case has several features unique to the United States and Kansas in particular, but that a Canadian sperm donor could potentially be on the hook for child support if the parent seeks it:

As I told my friend, there are a few things about this story that differ from how things would go down in Ontario (his observations about heteronormativity is not one of them). First, Canadian law doesn’t distinguish between DIY and physician-led insemination. Here we’re more concerned with whether the donor is known or anonymous, i.e. sperm purchased from an international sperm bank. The other major difference here is that unlike Kansas, the province of Ontario doesn’t go after people for child support against the wishes of the custodial parent (oh and not to mention that here the state doesn’t ask us to reimburse them for hospital bills).

Despite these differences, the big question is the same: does the law consider known sperm donors to be parents? This question has yet to be answered in Ontario. In fact it is an unknown in all provinces other than Quebec where the Civil Code explicitly recognizes the intended “parental project”. The question of sperm donor rights (and presumably financial responsibilities) is at issue in an upcoming family law trial in Northern Ontario where a sperm donor is now requesting rights of access to the child of two lesbian moms. In both the Kansas and Ontario cases the parties signed a contract identifying their intentions that the donor not be considered a father and the validity of these contracts remains to be seen.

So I had good news and bad news for my friend. The bad news is that yes sperm donors in Ontario could still potentially be ordered to pay child support. But the good news is that it wouldn’t happen against the wishes of the parents.

A commenter notes, however, that Ontario legislation does require a social assistance recipient to make every effort to obtain income from another source, including child support. Most other provinces have similar laws in place, so while the provincial department of Community Services might not commence the support application itself (as apparently happened in Kansas) it may still lean on the support recipient to go after the other parent. I doubt they would distinguish between someone who fathered a child the “old-fashioned” way, and someone who donated his sperm.

As for a case where social assistance is not a factor, I can’t see any court agreeing to uphold an agreement that no child support would be paid by a sperm donor. In cases where a child is conceived “naturally,” it’s a non-starter – child support is considered to be the right of the child, not the custodial parent, and a parent is not allowed to bargain away the little one’s right to financial support. I’ve worked on many divorces where the parties have agreed on everything, but it’s been held up by a Justice who wants a good explanation for why the agreed-upon child support payments are lower than the Child Support Guidelines amount. (If the payor doesn’t make enough money to pay support under the Guidelines, the court will not order it – but it will insist on annual disclosure of income information.)

Courts in this country have generally taken a very expansive view of when child support should be paid, and I can’t see that changing just because a laboratory was involved. Until we see some decisions saying otherwise, I would hold off agreeing to provide sperm to a willing couple unless you understand that you could find yourself forced to pay up.

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