The BC Supreme Court recently ordered that the donor sperm stored at a fertility clinic for a lesbian couple should be equally divided between them when they separated – with the result that the donor sperm could be used for insemination of a new spouse. To see the judgment in J.C.M. v. A.N.A., 2012 BCSC 584, go to http://www.canlii.org/en/bc/bcsc/doc/2012/2012bcsc584/2012bcsc584.html.

During their relationship, JCM and ANA each gave birth to one child conceived through donor insemination, using the same sperm donor. When they separated, they still had 13 donor sperm vials stored at the fertility clinic. Their separation agreement dealt with custody and access to the children and division of the couple’s property generally – with all joint property of the relationship to be divided equally between them – but didn’t specifically deal with the donor sperm.

After the separation, JCM started a new relationship and wanted her new partner to conceive a child using the donor sperm. As the donor had retired from the program, and JCM’s efforts to find other parents with extra vials of the same donor were unsuccessful, the donor sperm stored at the clinic was the only way to ensure a biological connection between the to-be siblings. Not surprisingly, ANA preferred that the donor sperm be destroyed.

JCM and ANA did not have a contract with either the fertility clinic or the sperm bank that defined their rights to the sperm vials.

The sperm vials are property

Even though the court recognized that donor sperm used to conceive children does not have the same emotional status as other assets, the court found that the sperm vials should be treated as property and divided as if they were property. Once the couple purchased the sperm, it was their joint property to be used for their benefit. Everyone involved along the way – the donor, the sperm bank, the clinic and the couple – treated the donor sperm as property.

While it is generally important to balance one person’s right to procreate with another person’s right to avoid procreation, there was no need to balance here because ANA would not be the biological parent of any child conceived using the donor sperm and would not have any parental responsibilities.

[Interestingly, the court noted that the Assisted Human Reproduction Act prohibits the purchase and sale of sperm but didn’t comment on whether the purchase of sperm from the United States, as was the case here, violated the Act. The court did state that a person can own property they are not allowed to sell.]

The best interests of existing and future children should not be considered

It would be speculative at best to consider the best interest of children who may conceived in the future. Also, if the case involved a man and woman, there would be nothing to stop the man from fathering children with as many other women as he wished, with all the children being half siblings (making the argument about best interests of the children potentially discriminatory).

Anonymous sperm donation is not proscribed in BC

Despite the Pratten v. BC decision on the rights of sperm donor offspring, there was no reason to decide this application on the basis that anonymous sperm donation is proscribed in BC. Pratten dealt with the entitlement to information (see my blog post on this case http://www.bcheritagelaw.com/blog/adoption/bc-court-declares-an-end-to-anonymous-sperm-donation/) , and a decision about legality of anonymous sperm donation would be outside the scope of the application (and pointless, as the sperm had already been donated anonymously in this case).

 The donor sperm should be equally divided

The parties’ own approach to division of all their assets was to divide joint assets equally, and equal division of the sperm vials was consistent with this. ANA could decide to sell her share of the sperm vials to JCM or dispose of them as she wished.

If you have a Will, getting married automatically revokes your Will, unless the Will contains a declaration that it is made in contemplation of the marriage . Without a new Will, your estate would pass on an intestacy, undoing  all the organization you did to get your previous estate planning in place.

Moving in with your partner does not have this technical effect, but is also a good time to review your estate plan.  For one thing, once you have lived and cohabited together for a period of at least 2 years you will have an obligation to each other as spouses under BC’s Wills Variation Act (see more below).

Depending on your situation and the intentions of yourself and your fiancé, your new Will and estate plan may be very similar or quite different to your existing one.

Some of the basic things to discuss:

• Who you want as executors? (each other perhaps, with other backups)
• If you have minor children together, who will be the guardian if something happens to both of you?
• How do you plan to provide for each other in your Wills? Who else do you have obligations to (ie, children) or want to consider in your plan?
• If you are alive but not capable of managing your finances or health care decisions, who do you want to take care of things?

For couples without children, a common plan is to leave everything to each other but to provide for other family members, friends or charity if the partner predeceases. For couples who have children together (or plan to soon), a common plan is to leave everything to each other and then to the children if something happens to both of them. That said, there is no cookie cutter solution, and it depends on your whole situation.

If you or you fiancé has children from a previous marriage, you need a little more discussion and advice to come up with the right plan.  If the children are minors, most people have joint guardianship with their ex and the child’s other surviving parent would be the guardian.  In terms of property, under BC’s Wills Variation Act, a person has responsibility both to their spouse and to their children (which means biological or legally adopted children).  If the couple is retired, each have plenty of resources, and plan to keep their estates separate for the children from previous relationships, they may do Wills leaving their estates to their children and a marriage agreement to confirm the agreement not to leave anything to each other.

On the other hand, the “all to each other, then to the children” simple Will plan does not work for a blended family. It does not adequately protect the children because the surviving spouse can remarry or change their Will after the death of the first spouse. Some solutions are to leave portions of the estate to each of spouse and children, spousal trusts in the Will (so the survivor can have the benefit of the estate during their life), joint spousal trusts if the spouses are over 65 years old, or using life insurance to create a direct separate inheritance for the children. For more on spousal trusts, see http://www.bcheritagelaw.com/blog/estate-planning/estate-planning-for-blended-families-carefully-balancing-interests/.

What are the options for a woman who wants to be a mom but who is in a romantic relationship with someone who doesn’t want a child?

She can wait around and hope her partner changes his or her mind. That might work if she is 25 to 30 years old. If she is 35 or over, and she doesn’t think her partner will change their mind very soon, she can embrace a full life with her partner without children, or she can start to consider other options. One of the options she might consider is becoming a mother on her own through donor insemination.   

The decision to let go of a real and present relationship with a partner in order to become a fully single mom can be a very difficult one to make. So the question for some women becomes: Can I become a mom on my own and still be in a relationship with my partner?  And if she is in a romantic relationship with a man: Should I ask him if he would be willing to be the donor if I take all the responsibility as a parent?

There are practical, emotional and legal issues to consider (which are equally important). I spoke to Holly Yager, a Registered Clinical Counsellor in Vancouver, BC who works with women and couples on this and other fertility related decision-making, to get her perspective on the practical and emotional issues, to go along with my thoughts on the legal issues.

Practically speaking, it is a good idea for a woman to go to a fertility clinic and have her ability to conceive tested right away, rather than waiting until her decision-making is done, especially if she is over 35. This seems counter-intuitive, but the process can take some time. It also makes the process more real, which can be clarifying.

Thinking about using an anonymous donor

The law in BC is evolving. Right now, a child is the child of his or her natural (ie, biological) or adoptive parent(s). If a woman uses an anonymous sperm donor to conceive a child, she can put herself alone as parent on the birth certificate or list her partner as a co-parent, but a birth certificate is not a legally binding document of parentage. When the new BC Family Law Act comes into effect (possibly in 2013), a child conceived through assisted reproduction (including donor insemination) will be the child of the birth mother and the child of a person who was married to or in a “marriage-like relationship” with the child’s birth mother when the child was conceived unless there is proof that before the child was conceived that person did not consent to be the child’s parent or withdrew the consent to be the child’s parent.

If the partner has an ongoing role in the child’s life, especially if the child lives with mom and her partner, there may be future battles down the road about custody, access and child support. Legal agreements, and parentage declarations if appropriate, can help clarify expectations and intentions to decrease the chance of disputes, but legal agreements are not binding in court where the child’s best interests are always the primary consideration.

On the practical and emotional side, some important issues to think about are:

• What are mom’s hopes and wishes about her partner? How will she feel if her partner doesn’t live up to them?
• What role will the partner play in the child’s life?
• What expectations does mom have about help and support from the partner through pregnancy and the challenging early times of parenthood? Is the partner up for that?
• What will be the impact on the child of mom having a relationship with someone who doesn’t want to be the child’s parent?
• What if the relationship breaks up, and the partner or mom goes on to have other relationships and possibly children?
• What if the partner’s feelings change down the road, either toward more or less involvement?
• What about the possibility that a court could order access to the partner down the road, regardless of mom’s feelings about this?
• What will mom and her partner tell the child about this situation?

Being the single mom of a donor child can be a very rewarding path to parenthood (I should know), but it is challenging. The more you can do to minimize stress and uncertainty, the more manageable and happy it will be. And it’s important to remember that a mom who starts alone may well meet a partner in the future who truly wants to be a family with her and her child.

 Asking the partner to be a donor

If her partner is a man, why not? Mom knows him, her family knows him, and it seems natural to ask. This idea can be a step along the road from wanting a traditional partnership and family to embracing the possibility of true single motherhood.

I’ll come right out and say my bias is that this is a bad idea – while it might avoid heartbreak in the short run, it has the potential for big problems in the long run. Often, a partner who doesn’t want children will refuse this request; this is painful, but actually a big favour if they are not to really be parents together.

Under BC’s current law, the partner would be the child’s other legal (ie, biological) parent. You could try to jump through some legal hoops to avoid this, but if you are in a relationship with the biological other half, and that person has a role in the child’s life (which is pretty impossible to avoid if you are in a relationship), you look a lot like any other couple who have a child together, only mom does not have the support of a partner who is really in it with her. The potential for misunderstanding and legal disputes down the road is higher than with an anonymous donor.

In addition to the other practical and emotional issues, issues to consider here are:

• Is mom really hoping he will come around so that over time they will be a full family? What if he disappoints?
• What will mom and her partner tell the child about his role in the family?
• How will the child feel about their biological other half not wanting to be their parent?
• If they live together, how will this look on a daily basis?
• What if he leaves the relationship but wants to be involved in the child’s life down the road? Especially if the breakup was hurtful.
• What if the relationship breaks up, and mom wants to have new relationships and possibly have that person be a parent to the child?
• What if the partner’s extended family want to have a role in the child’s life, even if the relationship ends?
• What if something happened to mom and the partner or her family wanted to be the child’s guardian?

Known donors who are not the mom’s partner can be a good option for individuals and couples –  coming soon, a post about how to do it right.

BC’s new Family Law Act will – for the first time in BC history – set rules about parentage when children are conceived using assisted reproduction (any form of conception other than sexual intercourse), including important guidelines for determining legal parentage where a surrogate is involved. Although the Act was passed November 24, 2011, it is largely not in force yet, and the government estimates it will take 12 to 18 months to implement the law.

The surrogacy rules will apply if the potential surrogate and intended parent(s) enter into an agreement prior to conception for the surrogate to be the birth mother, for the surrogate to surrender the child at birth and not be a parent, and for the intended parent(s) to become the parent(s) when the child is born.

When the child is born, the intended parent(s) will be the parent(s) if:

1. No one withdraws from the agreement prior to birth,

2. When the child is born, the surrogate gives written consent to surrender the child to the intended parent(s), and

3. The intended parent(s) take the child into their care.

The surrogacy agreement is not consent, but can be used as evidence of intentions if there is ever a dispute after the child is born.

If the surrogate and the intended parent(s) make an agreement prior to conception that they will parent together, they will all be the legal parents of the child born. The agreement is deemed to be revoked if a party withdraws from the agreement or dies before the child is born. This creates the potential for a child to have more than 2 legal parents.

Note that the new rules do not distinguish between a “gestational surrogacy” where the surrogate carries the child but is not biologically related to the child and a “traditional surrogacy” where the surrogate is also the biological mother.

If there is a dispute or any uncertainty about whether or not a person is a parent, a court application can be made to determine parentage.

The new Act also amends the Vital Statistics Act so that the child’s statement of birth must be completed by the parents (as defined above), and the birth certificate subsequently issued must not show that the child was born as a result of assisted reproduction.

BC’s new Family Law Act will – for the first time in BC history – set rules about parentage when children are conceived using assisted reproduction (any form of conception other than sexual intercourse). Although the Act was passed November 24, 2011, it is largely not in force yet, and the government estimates it will take 12 to 18 months to implement the law.

The new Act sets out three important guidelines for determining legal parentage where a sperm, egg or embryo donor is involved (see the separate post on rules where a surrogate is involved):

1. A sperm, egg or embryo donor “is not, by reason only of the donation, the child’s parent”, cannot be declared as a parent only on the basis of the donation, and is only a child’s parent if found to be a parent under the new rules.

2. The child’s birth mother is the child’s legal mother.

3. The person who was married to or in a marriage-like relationship with the birth mother (for this blog, the “spouse”) when the child was conceived is also the child’s legal parent, unless the spouse did not consent to be the parent or withdrew consent to be the parent.

If the donor, the birth mother, and the birth mother’s spouse make an agreement prior to conception that they will all be the parents of the child, then they will all be the legal parents of the child born. The agreement is deemed to be revoked if a party withdraws from the agreement or dies before the child is born.

This creates the potential for a child to have more than 2 legal parents.
If there is a dispute or any uncertainty about whether or not a person is a parent, a court application can be made to determine parentage.

The new Act also amends the Vital Statistics Act so that the child’s statement of birth must be completed by the parents (as defined above), and the birth certificate subsequently issued must not show that the child was born as a result of assisted reproduction.

CKNW – Sept15-11 – 1.30pm- Interview with Monique (part 1)

CKNW – Sept15-11 – 1.40pm – Interview with Monique (part 2)

Sperm donors are used by heterosexual couples with fertility challenges, by same-sex couples and by single women. What are the implications? In this interview, CKNW host Simi Sara and I discuss:

• Recent reports of the high numbers of children conceived from the same anonymous sperm donor
• What you need to think about if you’re planning to use a donor:
  -      The choice of an anonymous versus known donor (friend, family member)
  -       The need for a proper legal agreement with a known donor
• Information sharing with children and the impact of disclosure on children and donors
• Recent caselaw upholding the adult child’s right to know about their biological origins, and
• What we can learn from adoption law reform

I had the opportunity to speak with CKNW’s Marcella Bernardo this weekend about anonymity of sperm donors in light of the recent landmark case Pratten v B.C. (A.G.) – Listen to or download the interview here

My view is that the underlying idea of the decision – that donor conceived children need to have access to information about their biological origins  – is correct.  That said, any change to the law to open up information available about donors must be accompanied by law reform that makes it clear that donors are not the legal parents of the child and should also give donors who donated in the past the right to veto disclosure about their identities. As with adoption, it is critical for the law to balance the rights of children to information about their biological origins with the rights of donors to privacy and with the interest of parents raising children in having a stable family unit where they are recognized as the full legal parents of the children. B.C.’s reformed adoption law provides an excellent model about how this can be done, but needs to be adapted to fit the assisted reproduction context.

One of the main reasons that intended parents choose anonymous sperm donors instead of donors they know is that the current law does not provide a mechanism for a sperm donor to formally relinquish legal parenthood, unless the intended mother has a partner who can adopt the child and the donor consents at the time of the adoption. Anonymity is currently the most simple and practical way to have some certainty that only the intended parent(s) will be recognized as the legal parent(s) of the child. I believe that any law reform relating to disclosure of donor information and identities in B.C. should include the creation of a mechanism for a sperm donor* to relinquish legal parenthood at the time of donation and prior to the conception of any child and for intended parent(s) to formally accept full parental responsibility.

At law, a donor is the natural parent of any child conceived using his sperm. A donor potentially has all the responsibilities and rights of a parent, including the right to apply to a court for custody or access and the responsibility to pay child support if the intended parent applies for support. The intended parent(s)* and a known donor may make an agreement that only the intended parents will have the responsibilities and rights of parenthood, and that the donor will consent to adoption if the intended mother has a partner, but such an agreement is not legally enforceable.

This is completely different than the reality in the adoption context. Under the B.C. Adoption Act, legal parenthood shifts from the biological parents to the adoptive parent(s). The law provides a legal  mechanism for the biological parents to relinquish their legal parenthood – by  consenting to the adoption – where the adoptive parent(s) agree to take on that responsibility. Once an adoption is complete, the adoptive parent(s) are the legal parents of the child, and the biological parents cease to be legal parents. This legal parenthood is reflected in all aspects of the law.

Although legally speaking there may be no difference between known and anonymous donors, in practice anonymity is a primary way that intended parents reach the same on-the-ground result as adoption. If a donor is anonymous, a single mother of a child born in British Columbia can declare that the father is unknown and no information about the father will appear on the birth registration. If the mother is in a relationship, the mother can include a co-parent on the registration (see http://www.vs.gov.bc.ca/births/breg.html ). The intended mother, and her co-parent if she has one, will effectively be recognized as the child’s legal parent(s).

A recent B.C. Supreme Court case would require the B.C. legislature to extend to donor offspring the same rights to information about their biological offspring as adoptees, thereby stripping some of the anonymity from sperm and egg donation (see my blog post “BC Court declares an end to anonymous sperm donation” about Pratten v. British Columbia (A.G.)). The case highlights the mechanisms that allow adoptees to obtain information about their biological origins, particularly as adults.

What is not discussed in the case – because it was not the question before the courts – is that the information sharing mechanisms of adoption only work because they exist along with the shift in legal parenthood which is the heart of adoption. Once an adoption is complete, adoptive parents have some certainty about their status as the only legal parents of the child. This is recognized as being in the best interests of the children. No (or only very rare) adoptive parents would adopt children in B.C. if their parental status was not certain.

I would argue that creating a legal mechanism for a donor to relinquish legal parenthood at the time of donation, prior to conception, in favour of the intended parent(s) is an essential part of any law reform dealing with gamete donation. This could include a mechanism for the intended parent(s) using donated sperm to formally accept full parental responsibility. This would create certainty about legal parenthood and reflect the intention of donor(s) who choose to assist others to have children but never planned to parent those children. It would provide some comfort to donors about the implications of any law reform providing for more open information disclosure. It would encourage more people to consider using known donors or being known donors. For the children conceived by sperm donation, predictability and stability of the intended family unit in childhood and the increased ability to obtain information about their biological origins, including identity disclosure in adulthood, are in their best interests.

* This post deals with sperm donation, but the mechanism could also apply to egg donors.

As an adoptee who has reconnected with her birth family, the mother of a donor child, and a lawyer with a particular interest in assisted reproduction, I was very curious to read the B.C. Supreme Court’s new and landmark decision on the rights of donor offspring: Pratten v. British Columbia (Attorney General), 2011 BCSC 656.

Prior to this decision, children conceived in B.C. using donated sperm or eggs had no right to any information about anonymous donors, especially the donor’s identity.

Olivia Pratten, a journalist who was conceived in B.C. using the sperm of an anonymous donor, successfully argued that the sections of the B.C. Adoption Act and regulations which provide a mechanism for adoptees to obtain information about their biological origins are discriminatory because they are underinclusive and don’t provide equivalent rights to people who were conceived using the sperm (primarily) or eggs of a donor (“donor offspring”).

The court found unconstitutional provisions of the Adoption Act* that:

• require the medical and social history of the child’s biological family be collected during the adoption process and then preserved
• require that prospective adoptive parents receive a copy of that information
• allow for openness agreements between adoptive parents and relatives of the child
• allow disclosure of identifying information if necessary for the child’s safety, health or well-being
• (for adoptions prior to 1996) allow an adoptee who is 19 years or older to obtain a copy of their original birth registration (which usually contains at least the birth mother’s name) and adoption order unless the birth parent registers a veto preventing disclosure
• (for adoptions after 1996) allow an adoptee who is 19 years or older to obtain a copy of their original birth registration and adoption order, except the adoptee must sign an undertaking not to contact the birth parent if the parent registers a no-contact declaration
• provide for similar identity disclosure to birth parents of adoptees over 19
• provide a registry for adult adoptees and other relatives to exchange identifying information (e.g., siblings who did not grow up together)
• set up government services to assist searches and reunions

The court accepted evidence that donor offspring experience the same sense of loss and incompleteness as adoptees, that their lack of knowledge  causes psychological harm, that their health may be compromised by a lack of family medical history, and that they risk unwittingly being romantically involved with a half-sibling. The court also found that the private sector (which increasingly provides detailed medical and social history of donors for intended parents) is no substitute for government regulation, and regulation must come from the provincial government.

The court found that the Adoption Act violates the equality provisions of s. 15 of the Canadian Charter of Rights and Freedoms because it distinguishes between children who are disassociated from a biological parent based on the manner of their conception, and this distinction disadvantages donor offspring who have the same need for information about their biological origins and suffer the same harm from lack of information as adoptees. The court found that donor offspring are the victims of stereotypical thinking that they don’t have the same needs as adoptees or that it is acceptable to ignore their needs. The violation was not a justifiable limit on rights under s. 1 of the Charter.

However, the court did not find that the lack of regulation requiring medical practitioners to obtain and preserve medical and social history was a violation of the right to life, liberty and security of the person under s. 7 of the Charter because s. 7 does not create positive rights, such as the right to know one’s origins. That is, s. 7 can be used to attack legislation that deprives a person of a right but not to require that legislation be created to advance a right.

The court suspended its declaration of invalidity of the Adoption Act provisions for 15 months to allow the Province to enact legislation that remedies the discrimination. If the decision stands, anonymous gamete donation will no longer exist in B.C. It remains to be seen what new law the Province will enact for donor offspring.

I have long thought that the reformed adoption law strikes the best balance possible between the  various needs and concerns of children, birth parents and adoptive parents by generally preserving privacy during childhood if desired by the parents and then allowing information disclosure in adulthood, subject to a veto for birth parents who gave up children on the understanding that their identities would remain secret (although the result of this can be very painful for the adult children whose birth parents do choose to register a veto).

I know from personal experience that obtaining information about one’s biological origins and the possibility of knowing one’s biological parents goes a long way to completing one’s sense of identity and place in the world. No matter how close one is to the family they grew up with, there can be great satisfaction in seeing one’s physical characteristics physically reflected in others (something most people talk a lot about and take for granted) and seeing which character traits are biologically innate and which develop through family culture and influence.

This balance seems to me to apply well to donor offspring. When I chose to become the mother of a donor child, I deliberately chose an ‘identity disclosure’ donor. During childhood, we have fairly detailed non-identifying information about the anonymous donor (several pages worth, including medical history and two photographs). When my child turns 18, we should be able to obtain some form of identifying information, which is something the donor specifically agreed to.

This seems to me a fair default system, and one which hopefully will not discourage too many potential donors. The one missing piece that would remain, which I will discuss in my next blog post, is a mechanism – a cornerstone of adoption – for donors to relinquish legal parenthood in favour of the intended parent(s).

*This is not intended to be a complete list or summary, which is found at Schedule A of the decision

Often marketed as a solution to allow a homeowner over age 60 to remain in their home while borrowing the money needed for improvements or living expenses, reverse mortgages can present a nasty surprise for the borrower’s estate. A relatively small amount of money borrowed can become a surprisingly large debt. Because the debt is not paid until the house is sold or the borrower dies, the borrower may not suspect during their lifetime just how much they owe. This can significantly reduce the inheritance that is left to loved ones, and even in some cases bankrupt or near bankrupt an estate (even if there is enough equity in the home to cover the reverse mortgage itself). If the borrower has to sell during their lifetime to move into long term care, they may be shocked by how little money is left from the home proceeds to fund that care.

I have seen $40,000 borrowed become almost a $200,000 debt of the estate – 5 times the original amount borrowed and almost the entire value of the borrower’s condominium which was the primary asset of the estate. By the time the reverse mortgage, funeral expenses, probate fees, and basic estate administration costs were covered, there was just enough money left to cover a relatively small Visa debt and no inheritance left for the beneficiaries named in the Will.

The reason is compound interest. The nasty surprise above would come about with an interest rate of 11% compounded over 15 years. To take another example closer to today’s relatively lower interest rates, and assuming compounding only once annually:

Year 1 – $50,000 x 5% (a relatively low interest rate on a reverse mortgage) = $2,500

Year 2 – $52,500 x 5% = $2,625

Year 3 – $55,125 x 5% = $2,756.25

Year 4 – $57,881.25 x 5% = $2,894.06

By Year 5, the total interest is $13,814 (28% of the original amount borrowed), and total amount owing is $63,814.

By Year 10, the total interest is $31,445 (63% of the original amount borrowed), and total amount owing is $81,445.

By Year 15 the total interest is $53,946 (108% of the original amount borrowed), and total amount owing is $103,946. All of this assuming that the interest rate does not rise during that 15 year period.

A potential borrower can avoid nasty surprises by doing their research, considering all the options, considering all the scenarios that might occur, getting objective advice from a financial expert and doing some calculations to get a realistic idea of the cost of borrowing.

The named executor of a person who has died will want to know if there is a reverse mortgage and, if so, immediately get a full statement for the mortgage. If it looks like there might be any possibility of a bankrupt estate, the named executor will want to get full information and legal advice about the options before taking on the role of executor.

Next installment: What happens if an estate is bankrupt?