Two women, a man, and their baby

Court hears lesbian couple's attempt to prevent sperm donor from gaining parental status



The Gazette



Monday, September 13, 2004


There's no doubt the Montreal man fathered the girl who celebrated her first birthday in July - but should he get to be her daddy?


That's the emotionally and legally loaded question Quebec Superior Court will grapple with this week.

The toddler was born after the man donated sperm to an old flame who was starting a family with her lesbian partner.


A hearing starts today to decide whether the man should get to have his name inscribed on the girl's birth certificate and be the proud papa in her life.


He claims he always expected to be more than a genetic donor.


The mothers say they alone were supposed to be the child's parents - and are both listed as such on her birth certificate.


The outcome of the case could have profound consequences for an untold number of modern-day couples who have relied on sperm and egg donors or surrogate mothers to have children.

The case will also be a first test of new laws enacted in Quebec in 2002 that grant same-sex couples full parental rights.


Many are watching the proceedings closely, including Mona Greenbaum, of the Lesbian Mothers Association of Quebec.


She's been waiting for such a case to come along since 2002.

"I'm surprised it took this long," Greenbaum said.


She believes this affair will serve as a cautionary tale to couples - heterosexual or gay - seeking outside help to conceive.


The parties involved in the dispute did not want to speak publicly, saying through their lawyers it is a private matter.


But the genesis of the conflict is the subject of he-said/she-said contradictions, according to court documents.


The father claims he and his old girlfriend discussed having a baby together in 2000 but put the plan on hold because her partner was dead-set against it.


Once revived again in 2002, he was on hand for the artificial insemination. When she phoned to announce the pregnancy she greeted him "Hello papa."


He was at the hospital the day of the delivery and claims he saw the baby regularly.

But when he tried to clarify his status he found the harder he pushed, the more he was excluded - until access was cut off.


That's when he turned to the courts and, in a ruling that stunned observers, won interim visitation three times a week.

The mothers were shocked and tried unsuccessfully to have the visits cancelled in appeals court, arguing sperm donors traditionally have no rights or obligations under the law.


To them, the man has no more claim to their daughter than any other family friend.


The mothers say it was their decision to have a baby together and that the man was chosen to help after they ruled out other potential donors, including the non-biological mom's brother.


They preferred a known quantity to frozen sperm so they could easily trace the child's medical history in the event of medical problems.


"The co-defendants explained to all the men they approached that the two women would be the sole parents of the child-to-be," say court papers filed by the women, "and that the donor would not have any legal status as father, nor have any of the legal rights that accompany (it)."


McGill University legal and medical ethicist Margaret Somerville said all the fighting over who gets to be in the child's life obscures one person's interests: the little girl's.


Somerville strongly believes no sperm donor should remain anonymous because all children long to know where they came from - no matter how much they love who raised them.


"We must see the child as the priority, not the parents," Somerville said.


Paternal rights advocate Roger Townsend sees things much the same way, although he is less confident the court will.


"It's her daddy and this little girl deserves her daddy," said Townsend, a spokesperson for the Ottawa Men's Centre.

Although she knows some in her community will find her view blasphemous, Greenbaum doesn't think the case is the end of the world for lesbian mothers.


To her, it highlights the danger of not painstakingly spelling out beforehand what role a couple expects a sperm donor to play.


She estimates the split of lesbian partners who choose known donors versus a sperm bank is 50-50 - so it's important.


"My bottom line is: put it down on paper. It's the only way to be sure everyone is on the same page," she said.


The mothers in this affair might have to accept the man seeing their daughter as a consequence of not clarifying matters at the outset, she said.


That the father is manifesting his interest in being a dad so early in the girl's life will be hard for a judge to ignore, she added.


"I'm not scared of this case. People keep saying 'Oh, it's going to ruin everything.' but I don't think it's going to ruin anything," Greenbaum said.


"There's no way they're going to take away the rights of one of the mothers, I just don't see it. I'll be stunned if the father doesn't get some kind of visitation."