Sara R. Cohen, LLB
Fertility Law Canada & President, Fertility Matters Canada
Executive Director, Fertility Matters Canada
The fertility challenges faced by members of the 2SLGBTQ+ community are unique and complex. They vary depending on the individual(s) seeking to become parents. For the purposes of this article, we’ll focus on the most typical experiences of two fertile, cisgender mom families and the most typical experiences of two fertile, cisgender dad families, with the recognition that this, unfortunately, leaves out the very valid and real experiences of single and transgender folks, those suffering from fertility issues, as well as multi-parent families (including three or more parents).
Two mom families often rely on donor sperm to build their families. Donor sperm may come from a sperm bank or a known sperm donor. When using a sperm bank, some of the donors are anonymous and others are open-identification (which means that at the time that the donor-conceived person reaches the age of majority, they can contact the bank to find out information about the donor), but none are known. If it’s important to the parent(s) that the identity of the donor be known to the donor-conceived person, or for other reasons, some people choose to use sperm from a known donor to create their family. Known sperm donation may take place inside of a clinic through IUI (intrauterine insemination), or IVF (in-vitro fertilization), or it may take place outside of a clinic setting through at-home insemination. In Ontario only, the law even recognizes sperm donation through sex, as long as there’s an agreement in place before conception.
Because the Assisted Human Reproduction Act prohibits paying donors, Canada imports about 95 percent of the sperm it uses — ironically enough, from donors who are paid, but who are paid outside of Canadian borders. This leads to a plethora of issues, including an inability to effectively create a donor registry, lack of sperm from minorities, and other issues.
Cisgender two-dad families have perhaps more complicated steps that they need to take to build their families. Typically, these couples lack both ova and a uterus, and accordingly, they need access to both donor ova and a surrogate. Almost all surrogacy that happens in Canada is gestational surrogacy, which means that the surrogate isn’t genetically related to the fetus they’re carrying, and that the surrogate can only become pregnant through an embryo transfer (and that the surrogate is not also the donor of the ova).
Much like sperm donation, donor ova can be accessed through a U.S. ova bank or through a donor here in Canada who donates on behalf of the intended parents. The donor may not be paid, but her expenses may be reimbursed.
A surrogate is a person who gestates a baby on behalf of someone else, with the intention that she won’t be a parent of the child she’s gestating. A legal agreement must be in place before the embryo transfer, clarifying the intention of who is a parent and who isn’t. Despite this, there’s also a legal process that must be undertaken upon the birth of the baby, to make the intended parents the parents of the child and the surrogate not a parent of the child. The specifics of the process vary depending on the process where the child is born. Quebec is the only province in Canada where the law states that a surrogate agreement is null and void.
Although the path to parenthood for members of the 2SLGBTQ+ community can be difficult, with some expertise and support, it’s possible and fulfilling for all involved.