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The potential risk of introducing a Northern Ontario toddler to his genetic father at this point in his life is too major to be ignored, a judge has ruled in turning down a sperm donor’s bid for interim access to the boy, now being raised by his biological mother and her lesbian partner. The decision marks the first round in a key test case of the uncertain law around exchanges of human sperm and egg, as increasing numbers of Canadian children are born by “assisted” reproduction.
A full trial is scheduled for this October to consider the man’s demand for paternity rights – and add some clarity to the tangled issue – but Rene deBlois had requested access to the boy pending the final wrap-up of the case. The two women had argued that Tyler Lavigne, who has never met Mr. deBlois, might become confused and insecure if the 22-month-old encountered the donor now, noted Justice Norman Karam of the Ontario Superior Court in Cochrane, Ont.
“Despite the child’s young age, it is impossible to know what disclosure of [Mr. deBlois’s] status as his parent might mean,” said the judge. “All circumstances considered, the risk of there being an adverse effect to the child is too great to ignore.” Justice Karam said he considered imposing limitations on the access to deal with those concerns, but decided the restrictions would be virtually impossible to enforce. He said he also found “very convincing” the couple’s argument that by allowing access to the child now, he could inadvertently affect the outcome of the trial, expected to be closely watched by legal analysts, parent groups and others.
Selena Kazimierski and Nicole Lavigne say the donor – a former high-school acquaintance of Ms. Lavigne – signed an agreement that he would never contact the baby born in October, 2010, with the help of his artificially inseminated sperm. They fear the family life they have built for their son would be unduly disrupted if he that changed. The donor says he no longer honours the deal, partly because Ms. Lavigne failed to follow through on her verbal commitment to have a baby for him, too.
It is common sense to delay creating a relationship between a child and a stranger unless there is a guarantee that the relationship will continue Legal experts say the case offers up a relatively straightforward set of facts, allowing the court to directly tackle a question overhanging many such arrangements.
Growing numbers of children are being born in Canada as a result of in-vitro fertilization and other forms of assisted reproduction, often to same-sex couples. When donations are obtained anonymously from sperm banks, and in the few provinces with relevant laws, parenthood is generally uncontested.
In situations where couples and single people make arrangements with sperm donors they know, however – especially in provinces that lack such legislation – the rights of the various parties remain largely unresolved. A smattering of mostly lower-court rulings have addressed the question, but most of the cases have had complicating factors, such as a past relationship between the donor and recipient.
Lucia Mendonca, Mr. deBlois’s lawyer, could not be reached for comment Wednesday. Ms. Lavigne voiced relief at the ruling on interim access, saying it would have been too disruptive for everyone to allow the genetic father and son to meet, when the trial might rule Mr. deBlois has no paternity rights. “It would …. just cause pain on all sides,” she said. “It would be hard on him, if he got attached, and now ‘You’re never going to see him again.’ ”
The decision correctly analyzed the law – and applied pure common sense to the situation, said Michelle Flowerday, the Toronto-based fertility and family-law lawyer representing the couple. “It is common sense to delay creating a relationship between a child and a stranger unless there is a guarantee that the relationship will continue,” she said. “There is no guarantee here. We may well succeed at trial.”
The judge also said that he would not consider a legal motion by the couple to reverse an earlier decision, made when the women were represented by a different lawyer, to essentially void the sperm-donation contract. It is expected that issue will be considered at the trial, due to start Oct. 21. Justice Karam also rejected a request by Mr. deBlois for an investigation by Ontario’s Office of the Children’s Lawyer – which represents the interests of children in custody disputes – saying such a probe would be “of little value.”
Article: 8th August 2012 www.nationalpost.com