Fertility LawSperm Donation

Sperm Donation in Canada

Navigating the world of fertility can be complex, with various methods and legalities to consider. Whether you're looking to start a family or help someone else achieve their dream, understanding the intricacies of sperm donation and artificial insemination is crucial.

What is sperm donation?

Sperm donation is when a man, referred to as the “sperm donor”, donates his sperm with the intention that it be used in the artificial insemination of another woman, the “recipient,” to help her conceive.

Who uses sperm donation?

Sperm donation is popular among lesbian couples, single women who choose to conceive with the help of a sperm donor, and heterosexual couples struggling with male infertility (e.g. a male partner who is sterile or has a low sperm count). Sperm donation is an option for a man who has or is a carrier of a genetic disease or disorder he does not want to pass on to his children.

Artificial insemination / donor insemination

Donor insemination, also known as “artificial insemination”, is a fertility procedure that involves transferring sperm obtained from a donor into a woman’s reproductive tract at the time of ovulation by means other than sexual intercourse. It is used to help achieve fertilization and ultimately increase the chances of pregnancy.

Methods of artificial insemination

• Intrauterine Insemination (IUI) involves placing sperm directly inside a woman's uterus during ovulation. The sperm is washed and concentrated to facilitate fertilization and then deposited into the uterus using a catheter (a very thin flexible tube). Superovulation therapy is typically employed to stimulate the woman’s ovaries and increase the number of eggs available. This is the most common form of artificial insemination, and is performed by a medical professional at a fertility clinic.
• Intracervical insemination (ICI) involves placing unwashed sperm into or very close to the cervix during ovulation. From the cervix, the sperm swim up into the uterus and travel into the fallopian tubes where they can fertilize the woman's egg(s). This fertility procedure can be performed in a medical setting or at home.
• Intravaginal insemination (IVI) involves placing unwashed sperm into the vagina. This is most commonly performed as an at-home insemination.These techniques are very different from In Vitro Fertilization (IVF) which involves retrieving a woman’s eggs and fertilizing them in a laboratory setting, outside of the woman’s body. After fertilization, one or more of the embryos (fertilized eggs) are inserted into the woman’s uterus. IVF may use a couple’s own eggs and sperm, or donor eggs and sperm.

Obtaining donor sperm

Donor sperm can be donated by a known donor such as a friend or acquaintance, or by an anonymous donor through a sperm bank.

Is sperm donation legal in Canada?

While sperm donation is legal in Canada, it is illegal to purchase sperm from a donor or a person acting on behalf of a donor.

Can sperm donors be paid?

In Canada, sperm donation is altruistic. Meaning, you cannot be paid for donating sperm. The Assisted Human Reproduction Act prohibits paying for, offering to pay for, or even advertising to purchase sperm from a donor or a person acting on behalf of a donor. It is, however, legal to reimburse sperm donors for specific expenses that are set out in the Reimbursement Related to Assisted Human Reproduction Regulations. These regulations came into force on June 9, 2020.

Sperm donor agreements

A sperm donor agreement is a binding contract between a sperm donor and an individual or a couple that sets out the parties’ intentions in anticipation of donation, including their legal rights and obligations. In its most basic form, it is a legal arrangement between a donor and a person wishing to be inseminated. However, the agreement can also be between the donor and donor’s spouse on the one hand, and the birth mother and co-parent on the other hand. It can also be between a donor and intended parents who are using a surrogate.

Why do I need a sperm donor agreement?

Sperm donor agreements protect the legal rights of all parties. If you choose a known donor instead of an anonymous donor, it is particularly important to make sure you protect yourself with a sperm donor agreement prior to donation.

A sperm donor agreement allows you to be sure that the expectations around the conception, pregnancy and upbringing of the child are agreed upon by all parties and clearly articulated. This can for instance include the donor’s sexual activity, disclosure of medical history, medical testing, ongoing disclosure obligations, confidentiality and social media, relationship and contact with the child, and ownership and future use of any leftover frozen sperm.

The agreement contains strong language that the sperm donor is not a parent of the child, that he will have no guardianship or decision-making authority, and no rights to seek parenting time with the child (although there can be flexibility in this regard, if the parties desire). The agreement also protects the sperm donor from having any obligations to financially support the child by preventing the intended parents from seeking financial contributions such as child support. The agreement will also make clear that the sperm donated are a gift and that the donation is done for altruistic reasons.

It is very risky to use a boilerplate agreement from the internet as these templates are not tailored to your unique circumstances and do not take into account the legal developments in an area of law that is rapidly evolving. The agreement might therefore be incomplete, based on legal principles that are outdated, or include terms that do not apply to your case. There is also a risk that the agreement will not be enforced if challenged in court if it was not properly executed or if the parties did not obtain independent legal advice.