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What is the law around sperm and egg donation in Canada?

With the restrictions on same-sex parents being increasingly lifted when it comes to parental rights, and some couples continuing to experience fertility problems, people often turn to sperm or egg donations to make their dreams of parenthood become a reality.

Who may donate sperm or eggs in Canada?

Anyone who wishes to donate sperm or eggs must be 18 years or older. A person must also be mentally and legally capable to donate an egg or sperm.

What does the law say about egg and sperm donation?

In Canada, it’s forbidden for egg or sperm donors to be financially compensated for giving sperm or eggs. The Assisted Human Reproduction Act makes it illegal for a person seeking donation to pay for them.

However, if you have someone who is willing to donate their sperm or egg, you are allowed to reimburse that person for certain expenses, which often include: travel, accommodations and if the donor needs childcare for their own children.

Receipts must be kept otherwise a person can get in trouble for unaccounted expenses. Furthermore, those expenses that are to be reimbursed cannot be anticipated.

Though it is forbidden for a person to directly compensate a sperm or egg donor for their donation, the law does allow a third-party, also known as an agent, to arrange for an egg donation.

A person or a couple, looking for someone to donate sperm or an egg can look within their own friends circle or family. Some people or couples go to an agency to find donors.

In Canada, it is legal to inseminate sperm both inside and outside of a clinical setting, meaning that recipients can either inseminate at home or choose to go to a clinical setting.

Within clinical settings, the donor is usually asked to give formal consent to donate either sperm on an egg. That means consent must be given in writing, signed and witnessed by a third party.

Do sperm and egg donors have parental rights?

Currently, there is no conclusive case law in regards to the legal rights and obligations of donors.

Whether these donors have any kind of parental rights depends on what kind of agreement the recipient and donor made between themselves, whether the donor wants to be involved in the child’s life, and whether the recipient wants interference from the donor.

Often, where there is a dispute over parental rights when it comes to a sperm or egg donor and the recipient parent, the court looks at the best interests of the child and what would cause the least disruption in the child’s life. As well, courts will look at the donor agreement, if a donor agreement was made. Usually agreements give a good indication what the intentions of the parties were during the time of the child’s conception.

Increasingly, provinces in Canada, such as Alberta and British Columbia have or are updating their family law statutes to make it clear that a donor is not a parent just because he or she contributed genetic material to the child. There must be more than just the donation of an egg or sperm to connect the child to the donor and give him or her any kind of parental rights, such as some kind of involvement in the child’s life.

Ontario’s All Families Are Equal Act provides that a sperm donor whose offspring is conceived with the use of assisted technology is not necessarily considered to be a parent. If the donor donates sperm through sexual intercourse and a child is conceived, the donor is not a parent, if, before the child is conceived, both parties agree in writing that the person providing the sperm does not intend to be a parent.

If you want to draw up a written donor agreement, consult a lawyer.

Read more:

Assisted Human Reproduction Act

Sperm Donation Law in Canada

Sperm donor sued for support after 20 years argues new Ontario law protects him