Last week, the BC Supreme Court ordered that donated sperm purchased and stored by a former lesbian couple was to be divided equally between them.
One of the women wanted to use the anonymous donor sperm, which was stored in sperm straws at a Vancouver fertility clinic, to have a child with her new partner. She sought an order giving her ownership of the sperm. Her former partner argued that the sperm should be destroyed.
In her reasons, Madam Justice Russell framed the issues as follows:
1. Are the sperm straws property?
2. Is it relevant for the court to consider the best interests of the existing children and any future donor offspring when deciding whether the claimant should be awarded the sperm straws?
3. Is insemination from an anonymous sperm donor proscribed in British Columbia?
4. If the answer to the first question is yes, how should the sperm straws be divided between the claimant and the respondent?
In the end, Madam Justice Russell decided to treat the frozen sperm as property because the women themselves, and everyone involved, had treated the sperm like property. The sperm straws were purchased by the parties and used to their benefit, to conceive children together. They had the right to deal with the sperm straws as their property. When their relationship ended, the parties had divided all of their joint property equally between them. So too should they divide the sperm straws.
Justice Russell also decided that in the circumstances of this particular family law case, it would not be appropriate for the court to undertake an analysis as to what might be in the best interests of the children born to the parties, or to any potential child that may be conceived by the claimant and her new partner. She pointed out that when a relationship between a man and a woman breaks down, the woman cannot stop the man from fathering children with other women. Neither party has any right to restrict the other’s right to procreate. Neither should the parties here.
. . . to engage in any such analysis [of the best interests of the children who would be half-siblings] would be borderline discriminatory to couples, such as the parties, who must conceive through sperm donation should they wish to have children that are biologically their own — Madam Justice Russell, para 85
As for the legality of anonymous sperm donation in British Columbia, the court left that issue for another day. The lawyer for the woman who wanted the sperm destroyed argued that last year’s Pratten v. British Columbia (Attorney General) decision proscribed anonymous sperm donation. Madam Justice Russell took a practical approach, concluding that determining the legality of anonymous sperm donation was outside the scope of the case, and that it was too late to apply such arguments anyway– the sperm had already been donated and purchased. Moreover, the Pratten decision is still before the Court of Appeal, with judgment reserved. Stay tuned.