When donor becomes dad

Aug 31, 2021

10 minute read

All the names in this story have been changed.

When Jacqui and Sue moved in together in the fall of 1999, only Sue was sure she wanted kids. Jacqui soon came around. It wasn't long before the couple started musing about who would make a good sperm donor. They landed on their landlady's friend, Marcus, a gay man who Jacqui described as "articulate, well dressed, artistic, a world traveller."

They invited him over for dinner.

It was Jacqui's job to pop the question. "I said, 'We have something quite big to ask you.'"

It wasn't what Marcus, then in his late forties, had expected that evening. "I was frankly taken aback," he told me. "I had never considered having children, ever, in my life. It made me stop and think."

A few months later, though, he said okay.

Marcus agreed not only to donate his sperm to create children for the couple, but also to be known to the children should they have any questions. This was especially important to Sue. She'd been adopted as a baby but had lost her adoptive mom when she was still a teen and had never known her biological family.

Marcus thought this sounded ideal: he didn't want to be a full-time parent, but he thought he might enjoy what he referred to as "peripheral involvement."

"We all three seemed to be on the same page," recalled Jacqui.

Sue, then 38, would be the first to carry. They marked the calendar for when she would be ovulating then put Marcus on notice. "He was on pretty much 24-hour call," said Jacqui. She would drive over to his place, fetch the deposit, then inseminate her partner at home.

Sue got pregnant right away.

With the help of a seasoned fertility lawyer, the three of them drew up and signed a comprehensive 12-page "Donor Insemination Agreement." It identified the two women alternately as "coparents" and "comothers" and Marcus as "donor."

The two moms would be "equal coparents," the document said. Marcus was "not interested in being a parent or father to the child, now or in the future..." Any child will be adopted by the non-birth comother, the document said, and the donor will consent.

The agreement was explicit and forward-thinking. "All the parties acknowledge and agree that it is in the best interests of a child to be raised by his or her coparents, and that it will continue to be in the best interests of the child notwithstanding any change of circumstances, now foreseeable or unforeseeable, even if the circumstances are such that, had the parties known of them at this time, they might have made a different contract." Marcus "agrees that he will never assert any rights of guardianship, nor will he ever apply for such rights with respect to the child..." and he "agrees not to apply to a court for a right of access to the child..." Even if the relationship between the two women dissolves, the agreement says — even if one of them dies — he will make no claim.

It was a deal.

Both women had roots in the maritimes and they decided they wanted the baby to be born there. So nine weeks before the due date, Sue flew the six hours from British Columbia, where they all lived, to Nova Scotia. Sue stayed with Jacqui's parents while she waited for the birth. Before the big day, Jacqui flew out and joined her. Their little girl, Emma, was born in autumn 2004.

As per the contract, Jacqui formally adopted her. The adoption cost almost $2000.

They immediately started trying for a second child. Jacqui said the arrangement had been that she would carry next, and she said she did try a few times, with Marcus's help, but never got pregnant. Sue said she was the only one who was ever going to carry.

Just before Emma's first birthday, the couple moved from BC to Ontario. That made insemination more challenging. They explored shipping Marcus's sperm, but in the end they simply tried when he made his twice-annual visits to see Emma.

Sue got pregnant again. Five years after their first child, the couple had a second child, a son, Beau.

Both women had secure full-time jobs, and they owned a house together, but still, money was tight. Daycare and diapers and daily life — it adds up. They did not feel at the time that they could spare the few thousand dollars it would cost for Jacqui to adopt Beau. So they put it off. "I never thought it would be an issue," Jacqui said.

It would be an issue.

In 2012, Marcus decided to retire and move east. The women offered him their basement while he looked for a place of his own. "I thought he was coming to stay for a few weeks," said Jacqui. He stayed two years.

Marcus was an enormous help. He got the kids up in the morning, gave them breakfast, packed their lunches and dropped them at school and daycare. He took them to dentists and doctors and speech therapists. He was once a chaperone on a school trip, and his name was on the school contact list. He vacuumed and did the kids' laundry and helped them with homework. In summers, he looked after Emma all day.

The kids loved him.

Sue, who'd been married to a man for more than a decade before partnering with Jacqui, said Marcus had become her best friend. "We were like husband and wife," she told me.

For Jacqui, this was a crisis. She felt she was being displaced within her own family. "At no time did I wish him to take on the role of parent," she said. She was especially opposed to him disciplining the children — she felt he was too strict and that his style was not consistent with theirs.

Then, in July 2014, out of the blue, Sue told Jacqui that their relationship was over.

Jacqui was devastated. She ordered Marcus to leave, and he did. But the relationship between the two women couldn't be patched. Sue moved into the basement, Jacqui took the upstairs, and they began to live separately within their own home, sharing the kids one week on, one week off.

Jacqui told Sue she wanted to adopt Beau. At first, Sue agreed. Then she refused.

Both women hired lawyers, and the battle was on.

In November 2014, Jacqui filed for custody, access, and support. She also wanted to move forward with legal recognition as Beau's parent through a "declaration of parentage."

"I'm his parent," she said to me. "I've been there since we conceived him together. I've been there for his whole life."

But Sue saw it differently: she was the biological mother, Marcus was the biological father and Jacqui no longer had a role. "She's nothing to [Beau]," Sue told me when we spoke in 2016.

Sue didn't have anything against Jacqui seeing the kids or taking care of them every other week, but she didn't believe her former partner had equal status as a parent. She didn't want Jacqui travelling out-of-province with Beau, for instance, and used the word "abduction" to describe Jacqui's latest annual visit with the kids to the maritimes, to see the grandparents — the ones Sue had lived with during her last weeks of pregnancy.

Marcus felt the same way. He'd been added as a party to the legal proceeding in 2015. He was named as father on Beau's birth certificate. And it was his belief that, without his consent, Jacqui could never be recognized as the child's legal parent, something he told me he would not grant.

"I can't walk away from the biology of it," he said when we spoke in 2017. "They're actually my children." He felt very close to them, and loved being able to cuddle them, hug them, hold hands with them — things he said he hadn't been able to do with his own father. "I want them to know that they do have a mom and they do have a dad and that neither of us are going anywhere."

By this time, the two women lived separately in the same Ontario city, and Marcus had purchased a large property about an hour away. Sue often went there on her weekends with the children. In his filing to the court, Marcus had written: "I want the children to be able to come and stay with me in the country whenever they want. I want to be able to come and stay with [Sue] and the children..." But also this: "I want to share custody with [Sue] to create a loving space for both children to grow up in and thrive in."

Jacqui's lawyer suggested that maybe they should start calculating what he owed for years of missed child support payments.

To Jacqui, the situation was both horrifying and debilitating. She couldn't believe this was happening. It had been years since she'd read through the agreement they'd all signed before Emma's birth, but when she did, she started crying. Jacqui had forgotten that next to her name was the word "comother." It hit her hard. "Wow. I can’t… I'm really... I forgot, I guess, how clear we made it."

But it didn't matter how clear they'd made it. Agreements only work if you follow them. They rely mostly on the honour system, and when they're not honoured, you're left with the court system — which is expensive, painful and slow.

Even after they'd hired lawyers, filed documentation, and met with each other to try to reach agreement, the day-to-day reality that had brought them to court in the first place ticked on. When Sue wanted to take the kids on a spring break trip to Mexico, Jacqui refused to consent. When Jacqui had to work mornings and left 12-year-old Emma in charge during the before-school hours, Sue and Marcus called Children's Aid. The two sides struggled to be civil. Everyone was suffering, but no one would budge.

For a long while it looked as though they would only reach a resolution by going to trial. Both women spoke of how hard that would be on their kids. Their daughter was old enough that she might be asked to testify. Their son was already having behaviour issues. The cost would be ruinous as well. It can cost around $30,000 to go to trial, and that's after spending thousands in the lead up. For these reasons and others, cases like this one often "settle" — the parties reach an agreement without going to trial, with the help of lawyers and a judge.

Five years and two months after Sue told Jacqui their relationship was over, with the help of their own lawyers, lawyers from the Office of the Children's Lawyer (who represented the interests of the kids), and a judge, the two women finally reached a settlement.

Jacqui would be declared a legal parent. Marcus would be declared not a legal parent. The birth certificate would be altered to reflect this.

The parenting schedule would continue the week-on-week-off formula, with the person in charge that week making the everyday decisions and the children being exchanged at 5 p.m. on Sundays. The two mothers would try to agree on larger decisions about education or medical care, but Jacqui would have the final say on eduction and Sue would have the final say on health.

The children, at the time aged 14 and 10, would regularly see and have access to their two mothers and, also, to Marcus.

For despite the fact that Marcus was not to be regarded as a parent, and would owe no child support, he was formally allotted "parenting time" — one weekend a month, from Friday at 6 p.m. to Sunday at 5 p.m. Father's Day, too, would be his every year. Mother's Day, alas, would alternate between the moms.

A new deal.

Jacqui, Sue and Marcus did not respond to requests to speak about the settlement.

Like many stories, this is a complicated one. All three parties entered into this arrangement with the best of intentions, but over time things changed. Although the agreement said one thing, two of the three signatories eventually wanted something else.

I felt a need to write about this because I sense these situations come up more frequently than we realize. And if they settle without trial, semi-privately, we often do not know any of the details. What led to the disagreement? How was it resolved?

I find many things troubling about this case:

that a carefully written and considered agreement ultimately provided so little security
that the courts are so expensive and so slow at resolving what are really very time-sensitive matters
that the biological progenitors found it so easy to dismiss the importance of the non-biological parent, who'd been present and committed since before conception
that what many people will take away from this case is that it's dangerous to let the sperm donor have any meaningful contact with the children
that we don't know how often this happens
that there is so little clarity and protection for families like these, even as they are growing in number

I welcome your thoughts.

HeyReprotech

When donor becomes dad

A lesbian couple asked an acquaintance to be a sperm donor. Now he gets "parenting time" every fourth weekend.

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