August, 2015 / Author:

216-12 seeking the magic ingredientLesbian partners, non-romantic co-parents, polyamorous family networks, trans-masculine preg- nancy and single parenting are just some of the queer family structures who will seek sperm when they decide to make children part of their lives.

Because of a cultural history favour- ing chosen families, there is often open- ness in GLBT* culture toward creating new family forms. Some of these we’re just developing language for. Sometimes genetic relationships are significant, and sometimes they’re not. For many queer parents-to-be, planning a pregnancy needs to be thought through ahead of time since it won’t happen by accident.

So how do queer parents who need sperm get started? There are legal is- sues, relationships and roles to define, costs, and preferences to consider. The two basic routes to acquiring sperm are through either a sperm bank or a known donor.

“Unknown donor sperm is often seen as desirable because it allows lesbians to parent with autonomy and security,” writes Joanna Radbord in her paper GLBT Familes and Assisted Reproductive Tech- nologies. Radbord is a Toronto-based lawyer who has won awards for her focus on GLBT* legal equality. She says this is the route most lesbian partners take.

While it does protect the parents legally, unknown donor sperm is costly and sometimes ineffective. Further, there’s a shortage of ethnically-diverse donors in the Canadian sperm pool because of how the system’s set up.

Sperm from known donors provides less legal security to the parents and the donor, but is a do-it-yourself route many prospective queer parents are choosing. Although some believe there is a legal risk of prosecution with self- insemination, Health Canada has stated the intention of the Assisted Human Reproduction Act, which governs these activities, does not intend government involvement in the private matter of home insemination.

“If it’s a classic turkey baster at-home insemination, no one’s ever been pros- ecuted for that and I don’t imagine that anybody would be,” says Karen Busby, professor in the faculty of law at the University of Manitoba. Busby’s work focuses on GLBT* legal issues and she’s been key in shaping the province’s laws on same-sex relationships, which are the most comprehensive in North America.

Her advice to people using known donors is, “Make sure you talk as much as possible with the known donor about what expectations are and then see a lawyer to write up an agreement.”

She refers to such agreements as “arrangements,” and is clear that what they do is express the intentions of the parties involved. Without consulting a lawyer, she says, people are unlikely to cover all of the issues they need to. But if push comes to shove and there’s a legal dispute, this contract is not what’s going to determine a judge’s decision. In family law, a court will never ask the question, ‘What were the contractual arrangements?’ The court will always ask the question instead, ‘What’s in the best interest of the child?’ says Busby.

A Montreal donor, who wishes to remain anonymous for the sake of the couple he’s helping, did just this and drew up an agreement in consultation with lawyers and the couple.

“The idea was for me to give up all rights and responsibilities to the extent that the law makes that possible,” he says. “The parents, i.e. not me, will have full freedom—they’ll be considered the le- gal parents, they’ll have custody, they’ll be allowed to move with the child if they want to, they’ll cover all the costs.”

Interestingly, a known donor is tech- nically unable to give up child support rights because it falls under the rights of the child.

And although technically issues could arise, Busby points out many people us- ing known donors don’t have agreements drawn up, and most of the time things work out just fine.

It gets more complicated if those using known donors also have problems conceiving. “The law around sperm dona- tion is absurdly restrictive in my view, because if you’re not in a sexual relation- ship with the person, the sperm must be held in quarantine for six months before it can be used,” says the Montreal donor.

After the tainted blood scandal in the ’80s, the Canadian government became extremely risk-averse to the possibil-
ity of HIV, and so fertility clinics must operate under a law that means they have to hold any sperm for six months and re-test donors. The law also ends up being homophobic, because straight couples are allowed treatment right away, since they’re considered to be in contact with each other’s fluids anyhow. Even if someone has been trying with a donor’s sperm for months, the clinic must quarantine it if they’re not in a sexual relationship.

In the Montreal donor’s case, the couple had hoped to have his sperm frozen and shipped to another part of the country. But the barriers became excessive. He discovered his sperm dies when frozen, something that happens to some sperm and not other, and researchers are unsure why. “The law is self-defeating in a way,” he says. “It probably drives people to… bypass the clinic system entirely.”

…talk as much as possible with the known donor about what expectations are and then see a lawyer to write up an agreement.”

This is particularly the case if some- one wants to use a gay man’s sperm for conception. Sperm donation for gay men is only allowed with special doc- tor’s permission, a relic of homophobic policies from the ’80s. This means it can only easily be used if someone has no trouble conceiving and does not have to go through fertility clinics.

Another reason people use fertility clinics is to access unknown donor sperm. This process usually begins at a doctor’s office with a referral. Importantly, hu- man rights legislation prohibits discrimination on the basis of sexual orientation or marital status for those seeking reproductive assistance. As of August 2012, trans rights are protected in Manitoba, as well.

Because most fertility clinics were set up to treat infertile heterosexual couples, there are varying levels of awareness when dealing with GLBT* clients.

The Toronto-based LGBTQ Parenting Network has some tips if queer people need to navigate the clinics. The net- work’s guidebook on assisted human reproduction notes the “norm” for clinics is heterosexual, cisgender clients who are partnered or married with access to two incomes.

This can mean intake forms lack appropriate places to record gender identity, sexual orientation, relationship status or family configuration. The coun- sellors at the clinic may not understand realities specific to GLBT* reproductive choices and parenting plans. This will vary widely by clinic.

Know that fertility clinics are private- ly-operated and most of their services are not covered under Manitoba Health.

Also know that the technology exists for HIV-positive people to conceive and give birth to children without transmis- sion. As of August 2012, the guidebook notes, there were six clinics in Canada offering pregnancy support services to HIV-positive people.

Family law is presently receiving an update in Manitoba to recognize that some children have more than two legal parents. This will open the way for queer families to include more people on a child’s birth certificate. While some people reproduce as couples, others wish to have their donor and maybe his husband involved in the child’s life. Still others have family forms as unique as the relationships they negotiate. While family law across Canada is uneven and unprepared to deal with this reality, it’s evolving and beginning to catch up.


–Larkin Schmiedl is a freelance writer living and working in Vancouver, B.C. He loves to write about social and environmental justice, especially when it comes to other trans-people.

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