Settlement in Canadian Sperm Donor Case

I know I’ve been worse than spotty here recently and that is at least in part because it is the very end of our semester.   Things do tend to get hectic.   (And to add to the degree of difficulty factor, I’ve been doing quite a bit of travelling.)

But even as I struggle through this busy time, I have to pass along some quick thoughts about this story.  It’s the resolution of a case I wrote about all the way back when the academic year was beginning–and so as the year ends, it seems remarkable that the case, too, has drawn to a close.

You can and should read the earlier post for the details important at that time, but here’s the bottom line now.   A man originally agreed to be a sperm donor for a lesbian couple.  As a part of the deal he said he’d have nothing to do with the child.   (It looks like in current reports the names aren’t being used, but it does seem to me that it must be the same case.)

He had second thoughts, in part because he thought that the biological mother, who was (or had been?) an old friend had reneged on the agreement.   He brought suit seeking recognition as the father of the child (and I assume this means as a legal father) and the contact with the child that a legal parent would expect.

Last week a judge–not the same judge from the original story–issued an order declaring that the two women were the legal parents of the child and that the man was not a legal parent.    With the exception discussed below, the man was barred from contacting the child in the future.

This may seem harsh, but it is really just a consequence of the ruling that the women are the child’s parents while the man not a parent.  Parents can, in general, decide who a child gets to see  and who a child does not see.  Indeed, this is ability to control access to the child is a critical power parents wield.  It is at the core of parental rights.

Further parents are not generally obliged to explain their reasoning unless and until someone establishes that the child is at some sort of risk of harm.   In other words, they don’t have to justify their decisions.   The decision-making authority entrusted to parents is broad–the state doesn’t get to look over your shoulder all the time and second-guess a parent’s choices.

Thus, if the women–parents of this child–didn’t want the child to see the man it is entirely within their rights to say so.   Parents get to make the rules and if they do not want the child to see a person, that’s the way it goes.  Of course, the rules aren’t generally reduced to court, but in this case the court might have issued the order simply because the parties were there in court.)

It’s not clear to me whether this ruling was part of a settlement between the parties, but the whole point of the article is that the case did settle.  And, according to the report:

Under the deal, the northern Ontario man who launched the suit, and his parents, will be allowed a one-time public meeting with his offspring, now two years old, but they can’t reveal his relationship to the little boy or even touch him, the Post said.

I find myself vaguely troubled by the sad little scene that must result from this order.   It’s hard to imagine that it will mean much of anything to the child–who is two.   But it must at least partly satisfy some need of the man and his parents as it is surely occurring at their request.   I presume that this was a concession the parents had to make in order to settle the case.

As the article notes, Canadian law governing cases like this is not clear.   Unclear law only creates trouble, really.    People are much more likely to keep going when they think they might have a chance to win.  And in the end, I don’t think that is better for anyone.




14 responses to “Settlement in Canadian Sperm Donor Case

  1. I find your reporting on this incredibly callous. Let me ask you a pointedly personal question…you find out your son is about to become the father of a child he agreed not to raise in some informal agreement with a couple of friends…How do you feel Grandma? I know he’s not your biological son but that is not the point really is it? A piece of the child you love is lost to your family forever and your family is lost to his child forever. Now you say that not raising that child means its not his kid not your grand child. Really? You think you’d just not give a hot Gd dmn that your grandkid was out there somewhere being sequestered from your son and your family? If he came to you anguished and said “Mom help me please I cannot believe what I agreed to please help me I gave away my child and it’s killing me I can’t sleep I need to see him it hurts so much I want to include him in our family I want to be there for him I want to do the right thing and take care of him help me.” You’d say tough luck kiddo why should you care about this kid he is not your child? And No grandchild of mine? Heartless cold callous.

    • I’ll take a shot at your question though surely it is worth noting that as it is hypothetical, I don’t really know what I’d do. Also, for me I think, and incredible amount depends on details.

      So you say my son has made “some informal agreement.” (I’d just note that we have no idea if this is a correct characterization of what happened in the real case.) I don’t know what “some” means in this context so I’ll pass over that, but to me one key question is whether he made an agreement, formal or not. So if “informal” means “not in writing” then I don’t really care about the informality. I think a person’s word ought to be good whether formal or not.

      So how would I feel if my son made this agreement? For starters, I would hope that he thought long and hard before he made it. I hope he realized he was doing something serious, something other people would rely on and structure their lives around. I’d hope it wouldn’t come back to make him miserable, because he is my son and I want him to be happy. Perhaps if he asked me beforehand (which I gather he didn’t) I’d counsel him to have a lot of conversations about this before going forward.

      If he was miserable about the agreement he made, I’d encourage him to talk reasonably to the women he made the agreement with. (Maybe this happened in the real case–we do not know.) I would strongly advise him that going to court to press for legal parentage was a terrible idea–likely to create further dissension. I would point out that if he got parental rights it would be at a terrible cost for all concerned–deep antipathy among the adults now raising a child together.

      Maybe I would wish he hadn’t made the agreement for the reasons you suggest, but at this point I don’t see that. I don’t think I’d feel like I lost a piece of him and in fact, if he were happy about it, I’d be happy, too.

      Maybe this strikes you as all very callous but it doesn’t seem that way to me.

      • If he’s telling the truth in saying that the woman’s part of the agreement was to bear a child for him and she reneged on that then it must have been clear at the time that he wanted to be a father, and that this was a quid pro quo of him being a donor to a child he would never see.

        From his point of view he would get to be a father with custody and no interference from the mother (you have to infer this from the agreement saying that he wouldn’t contact the dc child). They both get one child each.

        While she is rightly able to renege on her agreement to be a surrogate, this it isn’t surprising that he has raised issues, since he no longer is going to get the child he thought was part of the agreement. You’ve focused here on his responsibility and his lack of thought – I’d say in that respect she is just as culpable.

        • I would guess one of two things happened, either she lied, or she realized after giving birth one time she couldn’t do it. But that’s why i think this sort of agreement – I give you a kid if you give me one later – is probably generally a very, very bad idea.

        • Reprehensible of both of them, but understandable in light of the wholescale commpdification of th ART business.

  2. It goes to the heart of your proprietary view that human beings are the possessions of whomever toils on their behalf. Mine my child I bought him with money or bought him with my labor and I get to keep him and hide him cause I do all the work. Nothing of accountability for ones actions. Nothing of owing it to the world to take care of the children one creates. No deep debt owed to the children we ourselves place on this planet. We owe them nothing no personal attention no direct guidance no protection from the elements nothing sell them forget them make them for people who want them like products for sale or trade. Slaves with no name of their own no history of their own total and complete servitude.

    • I think I’m going to move the discussion of children as property (and whether any of us think of them that way) to a separate comment–coming soon (esp. if I’m stuck in this airport.) I’m pretty sure we all agree that children aren’t property and shouldn’t be bought or sold or even owned. But we think of what counts as ownership or treating them as property quite differently. I think that legal parents do indeed owe a good deal to their children–but I don’t agree with you that one is a legal parent simply because one provided the DNA. Indeed, this seems to me a rather property-like view. But as I say–more on this soon.

  3. how do they plan,to justify their behavior to the child once hes old enough to understand?

    • I really don’t get why they would use a known donor if they feel this way. Cheaper perhaps?

      • sperm isn’t all that much. nothing compared to the cost of actually raising the child. Perhaps they wanted to be able to tell the kid one day in case he asked who his father was? perhaps they wanted someone who could be accessed in case of a medical emergency? perhaps they just found the whole anonymous thing creepy- you never know, it could be the guy sitting right next to you….

        • All of these are possible answers. Plus sometimes it isn’t easy for unmarried women or lesbian couples to find a source of sperm or a doctor to help.

          We don’t know why they did what they did. But does it matter? If they did it for a “good” reason (like they hoped one day to introduce him to the child when they were ready to do that) would that be better than if they did it for a “bad” reason (like they thought they could save a few bucks?) I am not sure it should really matter, though I wonder, too.

      • Also a good question. I can speculate–maybe cheaper, maybe they thought they had more information about him because he was an old friend, maybe there was (as I think he contended) a more complicated deal. Maybe they didn’t think about it that hard?

    • This is an excellent question. Not knowing the facts I cannot begin to imagine but I think it is a critical point and I sure hope they are thinking about it. One could also ask what the man would say to the child had he won. Or what he would say were he able to talk to the child.

      For all we know of the details, there may be a perfectly good justification. It’s also possible that things are not irreparably damaged between these people (okay, so I’m an optimist) and in time they might develop a different arrangement. Remember that what he sought was to be a legal parent–which very likely would have displaced one of the women as a legal parent. Maybe he had no choice–maybe the law didn’t allow him to seek contact with the child any other way–but once he took that tack, I understand why they had to oppose him.

      But I do not mean to obscure the fact that I think you’ve asked a crucial question. I just have no idea what the answer is.

  4. As the saying goes, bad facts amounts to bad law. The man is approached by a person he recalls as being a bully and still participates?
    This is a DIY transaction gone bad, apparently without attorneys, relying on a home IUI, and with no psychologist or other mental health professional screening.
    I think donor Dad got exactly what he deserved, nothing. I feel bad for the boy, but at least he can find dad on reaching the age of majority.

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