September 12, 2016 By: Paul Taylor-Sussex and Erin Lepine Read Time: 2 minutes
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Many readers will have heard about the sperm donor in the United States who misrepresented his health and background in order to sell to a sperm bank in Georgia. He claimed that he was healthy, spoke five languages and was in the process of completing a PhD in neuroscience engineering. In reality, he actually suffers from schizophrenia, had dropped out of college, and even had a criminal record, including time spent in jail. Sperm that he donated has been used in 27 different families and been responsible for 36 children, including here in Ottawa. The donor later admitted that he lied to the sperm bank.

 

As you can imagine, many parents are upset that they have been misled about the true nature of the donor. A number of lawsuits have been filed in Canada against Xytex Corp, the company who provided the sperm, including three in Ontario. Xytex claims that it followed rigorous protocols when screening potential donors, and although it does not verify the information provided by the donors, this fact is made clear to the recipients.

 

Just what is the law regarding donor sperm in Canada?

 

Provisions in the Canadian Assisted Human Reproduction Act make it illegal to purchase sperm from a donor here in Canada. Most prospective parents therefore purchase donor sperm from an agency that imports the sperm from another country (usually the United States) and distributes in Canada.

 

Parents can also use sperm from an “altruistic donor” (such as a friend), but this is a more complicated option. It is estimated that as little as 5 to 10 per cent of donated sperm in Canada is from local donors.

 

What are the regulations in Canada when it comes to importing sperm?

 

Unfortunately, the regulations that are in place are not particularly strict, and are fairly outdated. The guidelines that Health Canada follows are over ten years old, pursuant to the Food and Drugs Act and the Processing and Distribution of Semen for Assisted Conception Regulations. The main screening criteria is ensuring the donor sperm is free of “infectious agents”. However, no genetic testing is conducted, and no further verification of a donor’s background.

 

While new standards have been developed, they have yet to be adopted. As Ottawa fertility doctor Arthur Leader recently pointed out, “there's been no will at the level of the senior management at Health Canada or the minister to see those regulations come into force, despite the fact that Health Canada has been a party in the development.” The new standards would require Canadian companies importing sperm to obtain medical records of the donors.

 

Take-away for parents

 


What it means for parents looking for donor sperm is, unfortunately, buyer beware.

 

If you are residing in Canada and you are considering donating sperm or receiving donated sperm, it is strongly recommended that you first consult with a lawyer who specializes in fertility law issues, so that you are properly informed of the legal implications of these arrangements in Canada. Specifically, a Sperm Donation Agreement should be drawn up and entered into, prior to the sperm being donated. Note also, that in Ontario, the legal framework surrounding the parentage of children born by way of assisted reproduction methods is unclear. Proposed changes to the law in Ontario are expected to be announced later this Fall, whereas Alberta and British Columbia have more defined laws in this regard.

 

Have further questions about donated sperm or legal issues related to fertility? Contact our Family Law Group.

 

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2018 Nelligan O’Brien Payne LLP.

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