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.