The Sperm of it All: The Gap between Canadian Sperm Donation Laws and Reality
Key terms: AHRA, sperm donation, sperm donor
Netflix recently released their latest documentary, The Man with 1000 Kids (external link, opens in new window) , which discusses the “serial sperm donor (external link, opens in new window) ,” Jonathan Meijer, who donated sperm to produce upwards of 500 children. The documentary explains how families who used Meijer for his donations came to realize the vast number of children he had produced. The discovery lead to an investigation, litigation and eventual ruling from the Hague District Court (external link, opens in new window) which banned Meijer from donating any more sperm (globally) or he would face a €100,000EUR fine per infraction. This ruling supported the plaintiffs’ argument that Meijer’s continued sperm donations violated the right to a private life of his donor children, whose ability to form relationships were impacted by fears of accidental incest and inbreeding (external link, opens in new window) .
The documentary leaves the viewer with the message that some type of global oversight may be important when it comes to sperm donation in order to prevent serial sperm donors. This documentary and the associated Hague District Court ruling also raises questions about the status of the Canadian regulatory scheme surrounding sperm donation and sperm donors.
The Regulation of Sperm Donation in Canada
Sperm and ova (or “egg”) donation are regulated federally through the Assisted Human Reproduction Act (external link, opens in new window) (“AHRA”), 2004 and its associated Safety of Sperm and Ova Regulations (external link, opens in new window) (the “Regulations”). The Regulations came into force on February 4, 2020 thereby replacing the Processing and Distribution of Semen for Assisted Conception Regulations (external link, opens in new window) . The Regulations are relatively extensive, and have an associated Guidance Document (external link, opens in new window) . The Regulations aim to minimize any potential health risks to individuals in Canada who use donor sperm or ova in their assisted human reproduction (external link, opens in new window) (“AHR”) journey.
The AHRA (external link, opens in new window) lays out specific requirements for the sperm donor. For instance, a sperm donor must be over the age of 18 (external link, opens in new window) . There is currently no upper limit to the age of a sperm donor, though, a number of studies explain age-related reduction in male fertility can be associated (external link, opens in new window) with (PDF file) lower sperm quality (external link, opens in new window) and (PDF file) increased risks of reproductive issues (external link, opens in new window) . Importantly, the AHRA outlines that a donor cannot be paid for their sperm in Canada (external link, opens in new window) . However, they can be reimbursed for their expenses related to their donation (external link, opens in new window) . Reimbursements related to AHR are further detailed in the Reimbursement Related to Assisted Human Reproduction Regulations (external link, opens in new window) .
Given the potential harmful nature of sperm donation (external link, opens in new window) , it is pivotal that the donor meets the Regulations’ minimal standard requirements. As such, all sperm donors are subject to the donor suitability assessment to identify any risk factors for infectious and generic disease transmission (external link, opens in new window) . This includes a medical, including genetic disease, screening (external link, opens in new window) and a physical examination (external link, opens in new window) . Every establishment that collects sperm donations must assess the donor’s suitability (external link, opens in new window) . Until the donor’s suitability has been confirmed, in accordance with legislation and clinic policies, the donation must remain in quarantine (external link, opens in new window) .
The AHRA and the Regulations set out baseline requirements and criteria for clinics. As such, many clinics have their own internal policies in addition to the legislated minimums. For instance, Procrea Fertilité (external link, opens in new window) sets an upper limit age of 39 years (opens in new window) for their sperm donors and require donors to not be a sperm donor at another clinic (opens in new window) .
Conflicting Practices
Despite this relatively thorough legislative scheme detailing the types of testing and screening that sperm donors must complete, the Canadian sperm donation landscape is riddled with imported donations. These imported donations may be accessed via a sperm bank or reproductive clinic, or at the most extreme and unregulated side, via Facebook or digital introduction site (opens in new window) .
Imported Sperm Donations
Most donor sperm used in Canada is imported from the United States and Europe (opens in new window) , where sperm donors are paid for their donations. Ironically, the Canadian AHRA emphasizes that sperm and egg donors cannot be paid to uphold a level of altruism that aligns with Canada’s values and similar laws (external link, opens in new window) .
Further, the AHRA (external link, opens in new window) and its regulations outline the testing and screening that sperm donors and their donations must complete. While the legislation assures that even imported sperm donations undergo that same screening, scholars suggest that there are inconsistencies and a lack of clarity regarding the extent of testing conducted on imported sperm donations from non-major sources (external link, opens in new window) .
Facebook Sperm Donors
In a similar way that Meijer got in touch with individuals seeking sperm donations directly online, many other independent sperm donors (external link, opens in new window) can be found and contacted on Facebook. Some of these independent sperm donors receive constant donation requests from individuals through Facebook pages (external link, opens in new window) for Canadians looking for sperm donations. Regardless of the frequency of requests, these sperm donors have full control over which individuals become recipients (external link, opens in new window) .
Independent sperm donors may charge a fee to their recipient, though others refuse (external link, opens in new window) to take money for the donations they provide. One donor who charges a fee equates his charge to the time spent communicating and meeting with a recipient, and to pay for the supplies and baby favours he purchases (external link, opens in new window) .
Independent sperm donors are not concerned with the AHRA and its Regulations. Rather, they provide donation in four unregulated ways (external link, opens in new window) : natural insemination (intercourse), partial insemination (intercourse only following stimulation by masturbation), artificial insemination (donation provided to recipient for self-insemination), or shipped artificial insemination. Different donors have preferences over their manner of donation.
This said, the dangers of Meijer’s behaviour will not necessarily impact every recipient (external link, opens in new window) of his sperm because not every donation will lead to a live birth (external link, opens in new window) . Though there are likely other independent sperm donors who may match Meijer’s serial sperm donor status, many donors have more altruistic and realistic reasons for donating via Facebook (external link, opens in new window) – like helping individuals who cannot afford more expensive assistive reproductive technologies. No matter how altruistic, however, these independent sperm donors neglect the legislative scheme that exists in Canada.
Conclusion
The Man with 1000 Kids (external link, opens in new window) illustrates some of the policy issues that are still tied in the regulation of gamete donation and AHR more broadly. While the AHRA and the Regulations are extensive, establishments and health professionals maintain a freedom in their practices. Independent sperm donors operating online, meanwhile, may bypass regulations and guidelines. This discussion begs further conversation surrounding the current state of sperm donation in Canada and whether there are policy reasons for future amendments or policies.