In the late 1990s, a man donated sperm to his friend. She had two sons. He visited them a couple of weeks each year, occasionally contributed money for their upkeep and entertainment, and let them call him Dad. Was he their parent?
The story below relies primarily on court documents and an interview with the donor. The mother has declined to speak with me. A court order requires that I not identify the man, the woman, the children or where any of them live.
9 minute read
He was gay, she was single, and the question came up in the casual conversation between friends: would he donate sperm to her someday if she needed his help? He said he'd consider it. A few years later, when she asked in earnest, he said yes.
The original conversation had taken place while they were studying medicine together. Now they were living in different countries; she was in Canada and he was in the US. The simplest way to get the sperm to her, they decided, was for him to go to a US sperm bank and have them handle the shipment, so that is what they did.
Over the next few years, the woman had two sons.
Not long after the second child was born, they signed an agreement, which set out their shared intentions. Specifically, she would have sole care, control, custody and financial responsibility. She agreed never to ask him for money. He and his parents would get to visit with the kids. But they would never have any say in the children's upbringing, and he would never seek custody, even in the event of the mother's death. "I happily signed," the donor says, "because it was consistent with anything we'd ever discussed."
His job had him living all around the world — in the US, the UK, Europe, India — but whenever he was in Canada he made a point of visiting the family. Often it was just a quick stopover, but there were some longer visits too. They spent a few Christmases together. They shared a rental cottage for a few days. One year, there was a trip to Disneyland. Another, the kids visited him in Europe for a couple of weeks.
His parents got to know the children too. Early on, they volunteered to do some babysitting stints, even though they lived in another province. They helped out when the second child was born, for instance, and when the mother's own mother passed away. Another time, they looked after the children when the mother attended a conference. "My parents were very close with the kids," recalls the donor.
The donor had a good job and no other kids, and he was happy to help out financially from time to time. He paid for part of the boys' private school tuition, for instance. One year, according to court documents, he gave the mother $22,000 towards the boys' activities.
He says he identified strongly with the children. He says he was honoured when the mother introduced him as their biological father. The boys called him "Dad."
It appeared to be an ideal arrangement. The mother was secure as the only legal parent. The children had their biological father present in their lives. The donor got to know the kids and love them, but was not responsible for them. "I think that this had the potential to be a win-win-win situation," says the donor. "Forever."
A few days before Christmas in 2015, everything changed. The donor was visiting Toronto, and the kids, now teens, had come to stay with him for a few days at a downtown hotel. The three of them did some shopping and sightseeing but were mostly just spending time together. At the end of the visit, the kids, the donor and the mother all met in the hotel lobby at an agreed time.
After saying his goodbyes, the donor stepped onto the elevator to head back up to his room. Another man also stepped in, and as they ascended, that man approached the donor with a brown envelope. He told the donor that he was serving papers on behalf of his ex-wife.
The mother was suing for child support.
In court documents, the mother said that she was struggling to support the children by herself and was now seeking assistance. She was asking for regular child support going back three years as well as going forward. She was also asking for additional expenses to help cover things like childcare for when she worked on-call overnight, medical expenses, and post-secondary costs.
The donor was stunned. "That hit me like a train," he says. "I had no idea that anything like that could happen."
People who ask friends to act as donors sometimes worry that the friend might someday try to get custody of their children. People who act as donors to friends sometimes worry about financial obligations. The vast majority of known donor relationships never run into these problems, says Sara Cohen, a Toronto fertility lawyer.
But the line between donor and parent is not as boldly drawn as people think. A key issue in this case was whether the donor had "demonstrated a settled intention" to treat the children as his own family.
The mother argued that the donor had assumed the role of a father. In court documents, she says that the boys view him as their father, "the only father they have ever known," and that he "treats them as his sons." She says he had "declared himself as their father since their birth and continues to do so." His parents were the kids’ grandparents.
The donor disagreed. "I was asked to be a known sperm donor," he says, "and I don't really think I ever overstepped those bounds." From his perspective, he behaved exactly as they had both agreed that he would. He says he did not act as a parent: he had never had any say about anything related to their care, including any decisions regarding education, health, childcare, discipline or activities. He did not receive any medical records or school report cards and barely saw the kids.
The donor had not been around for any of the embryo transfers or medical appointments relating to the pregnancies. Nor was he present for the births. However, he did attend the children's naming ceremonies shortly afterward, and he did put his name on their certificates of live birth.
For all but one year of the children's lives, the donor lived outside Canada. Even the year he lived in the country, he was two timezones away from the children. Still, each year, the donor spent some time with the children — ranging from 2 to 27 days and averaging 14 days a year, according to court filings. Often the mother was present when he visited with the children, but not always.
Over the years, the donor had helped out financially. Sometimes these were one-off gifts, like the $22,000 or the Disney holiday or occasional plane tickets. Other times they were more predictable. There were the private school fees, for instance, and the few years he added the children on his work benefits.
Even though he acknowledged his place as the biological father, and allowed himself to be called "Dad," he says in court documents that he saw himself more as an uncle to the children than a parent. The mother's brother-in-law, in court filings, said that depiction wasn't accurate. "Their bond with him has always been a strong father/son bond. They are excited to see each other, they are affectionate with each other," he wrote. "I am the children's uncle. My relationship with the children is like an uncle. They are not overly excited to see me, although I am loving and supportive of them as their uncle. They are not affectionate with me."
Spending time with the children, paying fees and other costs of the children, being called Dad by the children and sharing a special affection with them — did that add up to being a parent under the law?
This case took place in the province of Ontario and it began just as a new parentage law was being formulated. During the course of the dispute, the new law, known as the All Families Are Equal Act, came into force. Because of the timing, it isn't clear which Act should apply, says Cohen.
Whereas the previous law relied heavily on genetic ties to define relationships, the new one stated explicitly that just being a biological progenitor does not make a person a legal parent. It also said that if a donor and a recipient write down their intentions in advance, the agreement will be honoured. "The new law was trying to allow known donors to be known by children," says Cohen. "It acknowledges that that's healthy." On the whole, she says, Ontario's new law does a good job. But there are still things that can put a known donor arrangement at risk.
When the parties met for a settlement conference, the judge was frank: it was not clear which way the case would go. The All Families Are Equal Act could tip things in favour of the donor. Although the agreement was not signed before conception, they did have one, and it stated clearly that he would not be expected to provide financial support. It also helped that the sperm had been donated through a sperm bank. On the other hand, the time the donor had spent with the kids, the nature of his financial contributions and the fact that he was known to them as Dad could mean a finding in favour of the mother.
Both parties had already invested substantial sums in legal fees. In June 2017, almost 18 months after the dispute began, the mother and the donor agreed to settle. According to court documents, the donor agreed to pay a lump sum total of $230,000.
"It still seems such a stupid, silly thing," says the donor. "The settlement was ultimately nothing — it was insignificant — but the kids, as a result, have lost all contact with father and paternal family. I can't understand it."
There has been no contact between them since.
He’s sad, he says. "I think of the kids very often and very fondly."
The donor has advice for other men thinking of helping out friends:
1. Make sure you have a pre-conception legal agreement, written by a lawyer and signed in the presence of a lawyer. Get independent legal advice before you sign.
2. Donate through a fertility clinic.
3. Do not sign birth certificates and do not participate in any christening or naming ceremonies.
4. Be known to the children by your first name or a nickname, but never as "Dad" or anything remotely fatherly. Never sign anything as "Dad."
5. Keep any gifts low in value and irregular. Don't give gifts that can be perceived as necessary to the support of the child.
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