Greenbaum says the legal landscape for sperm banks and fertility clinics operating in Canada shifted in 2004. In March of that year, the federal government passed Bill C-13, the far-reaching Assisted Human Reproduction Act, into law. The government had been trying for some time to come up with legal guidelines around the growing prospect of people conceiving families in new and different ways, with efforts dating back to 1993. But in the public consciousness, the science was moving at an incredibly rapid rate, meaning anxieties were running higher than usual — in particular when the first mammal, Dolly the sheep, was cloned. Suddenly, science fiction was merging with reality, and future shock set in. The result, argue many lesbian moms and their advocates, was that a number of legal provisions concerning surrogate mothers and sperm and egg donation got mixed up with fears about cloning and species crossbreeding. C-13 strictly forbids mixing animal dna with human embryos, for example, while also making paid surrogacy illegal and prohibiting the sale and purchase of sperm.
Gays and lesbians could be forgiven for feeling a bit insulted. The huge chunk of legislation appeared to link procreative techniques that would help them form families with potentially horrific scientific experiments. “I understand, to an extent, where they were coming from and what they were attempting to do,” says Kelly Jordan, a Toronto-based lawyer who specializes in law related to assisted human reproduction, and is herself a lesbian mom. She says she feels the authors of C-13 were probably well intentioned, “but they were short sighted. I see no evidence that surrogates or donors have been exploited for their genetic material. The surrogates can’t be paid beyond their basic expenses — which just means women’s work is getting unpaid or underpaid again. And the banning of paid sperm donation in Canada has simply led to a shortage, which has meant women are forced to go to the US for sperm.”
That is precisely where Liliane turned to be impregnated. She and Joyce visited a US sperm bank’s website, where pleasing slogans welcomed them to the prospect of pregnancy. They looked at photos of potential donors, reading brief statements from each about why they’d chosen to donate sperm. Something in a note by one man touched Liliane. “He seemed sweet to me,” she recalls. “We just felt that this would be the right one. We bought four doses of his sperm for $1,200.”
But she and Joyce would find that plan A came with its own set of surprises, some unwelcome. Their sperm bank claimed donors would be retired after a reasonable and limited number of donations, to keep half-siblings to a minimum. The couple also learned of an online registry where recipients could check out their donors using identification numbers. They signed up, and to their surprise found that their donor was a popular choice among wannabe moms. They also discovered that a lesbian couple they knew in Victoria had used the same donor, and were thus connected to them by dna whether they liked it or not.
“At this point, Joyce called the clinic,” Liliane recalls, “and asked what the protocol was. They discussed things and agreed that this particular donor should be retired. We were quite taken aback that there would be so many people using our donor’s sperm.” The clinic’s website implied that it was notified by its clients when someone had a child through their services. But that assurance left nagging questions, too. “Notification to the clinic of a pregnancy or birth is entirely voluntary, so there may be many they are not hearing of,” Liliane points out. “As well, how do they know this donor isn’t going to ten other sperm banks and donating at the same time? Our child could have quite a number of half-siblings.” Furthermore, while the sperm bank they went to insisted it had a screening process in place, Liliane has no idea if they asked any questions about donors’ comfort level with lesbian parents. What if their child, at eighteen, ventured to make contact with the donor, only to learn that he was entirely uncomfortable with the child’s family? “I really hadn’t thought of that. It never crossed our minds.”
Meanwhile, other lesbian moms feel strongly about having a donor around, acting in a quasi-godparent capacity, so the child can know its biological father as he or she grows into adulthood. Many of those I interviewed say this choice often boils down to a cultural difference. A lesbian couple from France, for example, may have a heightened consciousness of lineage and pedigree. For them, the best choice would probably be to go with a known donor. Still, plan B has its own set of sub-choices. If lesbians opt for the do-it-yourself, or “turkey baster,” method, things can move along with no state interference. If they have problems getting pregnant, however, and a fertility clinic is needed, then the lesbian moms and their chosen donor can hit another barrier. As the law stands, sperm banks in Canada often reject sperm from gay men, citing the same line of reasoning for refusing them as blood donors: risk of hiv transmission, even with gay sperm donors being tested for hiv, and even with sperm being frozen and held for six months and tested for the virus. In January 2007, the Ontario Court of Appeal upheld this ruling, after a lesbian argued that excluding her from using the semen of a gay friend violated her constitutional rights. A three-judge panel stated that the federal regulation is “rational and health based,” given the “higher prevalence of hiv and hepatitis among men in the msm [men who have had sex with another man] category.”
Lesbians and their gay sperm donor friends have a simple option, of course, and that is to defy the law, either by outright lying about their sexual preferences, or by keeping mum about their personal information. One gay man, Jonathan, a Toronto lawyer involved in a known-donor arrangement, says the fertility clinic he and a lesbian couple went to operated amid a Clintonian aura of don’t-ask, don’t tell. “They knew full well that I was gay, and that the two women sitting in front of them were a lesbian couple,” he recalls. “They never asked us about anything; we never said anything. It was fine. We worked it out and ended up with a daughter.”
During our interview, Jonathan takes umbrage at my use of the term “donor.” The semantics I’m employing, he points out, have far-reaching social, ethical, and legal implications for all involved. “I find it insulting to be called a donor,” he says. “When we entered this agreement, it was clear that I would be filling a parental role. I’m not a donor; I am a father to my daughter. It all boils down to the role you’ve agreed upon.” Many of the lesbian moms I spoke with argued the opposite, correcting my use of the word “father” and asking that I refer to the gay men involved as “donors.”
This debate over labels has a familiar ring for gays and lesbians; for decades, words like “gay” and “queer” were part of long-winded meditations on how we identified ourselves and were represented by others. Jonathan has reason to be touchy; this fall, he heads into an epic custody battle against the lesbian couple he had his daughter with.
Kelly Jordan confirms that the enforcement of laws and regulations around sperm donation and fertility procedures are haphazard at best, with each clinic operating on its own terms. She points to the fact that although C-13 was passed in 2004, it wasn’t until January of 2006 that the Assisted Human Reproduction Agency of Canada was established. It has wide-ranging duties, including overseeing and enforcing the law, and critics pounced on the appointees to the agency, all of whom were chosen by Prime Minister Harper, and many of them outspoken critics of abortion and ignorant of new fertility treatments — reasons to make lesbian and gay parents nervous.
Because plan B can often be carried out at home, free of institutional interference, some lesbian moms find it very attractive. For Joan and Shauna, another Montreal couple, it seemed a perfect fit. Joan, who was to carry their child, had a close gay friend who had just completed a Ph.D. and was teaching at an American university. Intelligent, handsome, and out of town, Robert was everything they could ask for. And he seemed not to want too much contact beyond a vague godparent role in the child’s life.
What Shauna had not prepared for was the powerful emotional response she would experience whenever Robert was in town and popped by for a visit. “Looking at it from the outside, it seemed really simple,” she says, “but it’s always more complicated than that. Our friends, all enlightened, many queer, still gave our son’s biological parents more weight. They’d say, ‘Did you hear? Joan and Robert had a kid together!’ People in our society are used to a mom and a dad. As the non-biological parent, I was left asking where my place was in all of this.” Being a lesbian mom, Shauna explains, often means coming out all over again. “‘Who’s the father?’ is a common question,” she says. “With time, it’s getting easier to explain the two-mommy scenario.”
In legal terms, the situation is also evolving very quickly. Jordan says she draws up an increasing number of contracts for lesbian mothers and their known donors. In April of 2007, the Ontario Court of Appeal ruled that a non- biological lesbian mother could be legally recognized as her son’s third parent. That a court would suggest there could be three legal parents meant contracts had to be altered. Predictably, this sent the self-appointed family values crowd into a frenzy. Ruth Ross of the Christian Legal Fellowship pondered the possibility of a six-parent family in the pages of the National Post.
“From a legal perspective, I would have to recommend that people go with an unknown donor, through a clinic,” says Jordan. She points to a rapidly growing number of cases that pit known donors against lesbian parents. “As it stands, known-donor contracts have not been tested in the courts. My strong advice to people who come to me as they are weighing the options is to go with an unknown donor.”
But Greenbaum says legal advice is only one dimension of this particular decision. “Families are started for a complex set of reasons. What’s most important is that when people enter into these situations, they choose the option they are most comfortable with.” Understandably, lesbian moms tend to feel strongly in favour of the option they selected. “I think that those who choose an anonymous donor are doing that to protect themselves, while those who have a known donor are doing that to benefit the child,” says Joan. “Our choice has had its difficulties, but I’m ultimately glad our son will grow up knowing who his biological father is.”
