Having Children with Assisted Reproduction: Difference between revisions

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{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Gayle Raphanel]] and [[Rhaea Bailey]]
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}
}}


Once upon a time, not all that long ago in fact, sex was the only way to have a child. Sometimes, however, a child was not the participants' desired outcome and rules were developed to help the courts figure out who a child's father was when paternity was denied.  
Once upon a time, not all that long ago in fact, sex was the only way to have a child, and if people couldn't have a child for some reason, they either went without or looked at adoption. These days, with the help of technology, it's possible to have that child using donated eggs or sperm, or with the help of a surrogate mother.  


These days, with the help of technology, it's possible for a couple who want a child to have that child using donated eggs or sperm or with the help of a surrogate mother. The question now is less often about who isn't a parent than who is.
This section talks about assisted reproduction, the federal ''[https://canlii.ca/t/7vzj Assisted Human Reproduction Act]'' and the rules in the provincial ''[[Family Law Act]]'' about determining who is a parent when a child has been conceived through assisted reproduction.


This section talks about assisted reproduction and the rules that determine who is a parent under the ''[[Family Law Act]]'' when parentage is denied, and when a child has been conceived through assisted reproduction.
==Introduction==


==Determining parentage==
Assisted reproduction relies on the help of other people to conceive a child. It is necessary when:


Part 3 of the provincial ''Family Law Act'' provides a comprehensive scheme for determining the parentage of children that applies for all legal purposes in British Columbia, including for family law disputes and wills and estates matters, except when parentage is determined under the ''[http://canlii.ca/t/84g5 Adoption Act]''. Section 24 says this:
*a person wants to have a child without someone else also being a parent of that child,
*the people involved in an opposite-sex relationship are infertile or a woman can't carry a baby to term,
*the people involved in a same-sex relationship want to have a child, and they want the child to share the genetic heritage of at least one of them, or
*a couple wish to include one or more other people as the parents of their child.


<blockquote><tt>(1) For all purposes of the law of British Columbia,</tt></blockquote>
Whatever the circumstances might be, having a child through assisted reproduction often involves one or more of:
<blockquote><blockquote><tt>(a) a person is the child of his or her parents,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a child's parent is the person determined under this Part to be the child's parent, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the relationship of parent and child and kindred relationships flowing from that relationship must be as determined under this Part.</tt></blockquote></blockquote>
<blockquote><tt>(2) For the purposes of an instrument or enactment that refers to a person, described in terms of his or her relationship to another person by birth, blood or marriage, the reference must be read as a reference to, and read to include, a person who comes within the description because of the relationship of parent and child as determined under this Part.</tt></blockquote>


Section 26(1) says who a child's parents are presumed to be:
*the use of donated eggs,
*the use of donated sperm, and
*the cooperation of a woman who will carry the baby to term as a surrogate mother.
 
The federal ''[http://canlii.ca/t/7vzj Assisted Human Reproduction Act]'' regulates the scientific and commercial aspects of assisted reproduction. From a family law perspective, the important parts of this act make it illegal to sell eggs or sperm, and say that a surrogate mother can't be given money for her services apart from compensation for her expenses.
 
The provincial ''[[Family Law Act]]'' lets people who are having a child by assisted reproduction decide who will and won't be a legal parent of their child, by making an agreement in writing before the child is conceived. (This part of the act is awesome because it lets people decide who the parents of a child will be, for ''all'' purposes of the law of British Columbia, without having to go to court to get an order saying who the parents of a child are.) Under the ''Family Law Act'', a child can have up to six legal parents if everyone agrees:
 
*up to two people who intend to have the child,
*a donor of eggs,
*a donor of sperm,
*a surrogate mother, and
*the spouse of a surrogate mother.


<blockquote><tt>On the birth of a child not born as a result of assisted reproduction, the child's parents are the birth mother and the child's biological father.</tt></blockquote>
==Assisted reproduction processes==


Now it's usually quite obvious who the birth mother of a child is. It not always evident who the biological father is. A paternity test will resolve any uncertainty as to whether a particular man is the father of a particular child, and with today's technologies, the odds of an incorrect result are on the <span class="noglossary">order</span> of a thousandth of one percent. For a father, proving paternity can be essential to establishing a right to be involved in a child's life. For a mother, proving paternity can be an essential step in securing a child support order.
Assisted reproduction refers to the use of different kinds of strategies or technologies to help people conceive and carry a child to term when they can't or would rather not do so through natural reproduction. ("Natural reproduction," of course, is a fancy way of saying ''sex''.) Assisted reproduction may be necessary when a person wants to have a child on their own, when the people involved in a family relationship are of the same sex, when the people in an opposite-sex relationship can't have a child on their own for some reason, or if there are more than two people who want to be the parents of a child, which might be the case for people involved in a polyamorous relationship. Problems involving sterility and infertility may be addressed through the use of sperm or eggs donated by someone else, while problems involving carrying a pregnancy to term may be addressed by having another woman carry the pregnancy as a surrogate mother.


===The presumptions of fatherhood===
Sometimes "assisted reproduction" refers to medications or medical procedures intended to help a woman ovulate and release an egg that can be fertilized by a man's sperm. Most of the time assisted reproduction refers to fertilization of eggs outside the body in a laboratory setting, called "in vitro fertilization." In cases like this, eggs are removed from a woman's ovaries and fertilized with a man's sperm in a petri dish. If the fertilization is successful, the fertilized egg &mdash; called a ''zygote'' &mdash; is surgically implanted in a woman's uterus, and it is expected that the zygote will develop into a fetus, be carried to term, and be delivered.


Only biological parents and people who are stepparents because they are the married or unmarried spouse of a parent are required to pay child support. When a man denies a responsibility to pay child support on the ground that he is not the child's father, the first thing the court will do is see whether he should be presumed to be the father because of the nature of his relationship with the child's mother.  
There are also cases where people attempt to fertilize an egg at home, outside a laboratory, using something like a poultry baster to introduce sperm directly into a woman's vagina, and from there into her uterus and into her fallopian tubes where fertilization occurs.


Under s. 26(2) of the ''[[Family Law Act]]'', a man is presumed to be the biological father of a child in one of the following circumstances:
Laboratory processes can be extremely expensive and time-consuming, taking tens of thousands of dollars and many months to fertilize and implant a zygote and bear the fetus to term. Home-based processes, while perhaps less likely to result in a viable pregnancy, at least have the benefit of being cheap and possibly more fun.


<blockquote><tt>(a) he was married to the child's birth mother on the day of the child's birth;</tt></blockquote>
==The legislation about assisted reproduction==
<blockquote><tt>(b) he was married to the child's birth mother and, within 300 days before the child's birth, the marriage was ended</tt></blockquote>
<blockquote><blockquote><tt>(i) by his death,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) by a judgment of divorce, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iii) as referred to in section 21;</tt></blockquote></blockquote>
<blockquote><tt>(c) he married the child's birth mother after the child's birth and acknowledges that he is the father;</tt></blockquote>
<blockquote><tt>(d) he was living with the child's birth mother in a marriage-like relationship within 300 days before, or on the day of, the child's birth;</tt></blockquote>
<blockquote><tt>(e) he, along with the child's birth mother, has acknowledged that he is the child's father by having signed a statement under section 3 of the Vital Statistics Act</tt></blockquote>


Presumptions like these were once very important when there was no reliable way to scientifically verify that a particular man was the father of a child. These days, however, we do have the technology and a man who disputes paternity despite these presumptions can ask for an order that a parentage test be conducted. Without challenging these presumptions, however, the man will likely be required to pay child support for the benefit of the child.
The two laws that provide the rules about assisted reproduction are the federal ''[https://canlii.ca/t/7vzj Assisted Human Reproduction Act]'' and the provincial ''[[Family Law Act]]''. The ''Assisted Human Reproduction Act'' regulates scientific research using sperm, eggs and zygotes, the commercial uses of sperm, eggs and zygotes, and how people arrange to have a child through assisted reproduction. The ''Family Law Act'' talks about who are the parents of children conceived by assisted reproduction and how people make agreements determining who the parents of such children will be.  


===Parentage tests===
===The ''Assisted Human Reproduction Act''===


Under s. 33(2) of the ''[[Family Law Act]]'', the court may
The highlights of the ''Assisted Human Reproduction Act'', for people wanting to have a child by assisted reproduction, are these.


<blockquote><tt>order a person, including a child, to have a tissue sample or blood sample, or both, taken by a medical practitioner or other qualified person for the purpose of conducting parentage tests</tt></blockquote>
Under section 6, women cannot be paid for acting as a surrogate mother, and it is illegal to be paid to connect people who need a surrogate mother with women willing to be a surrogate mother. Under section 7, it is illegal to sell sperm, eggs and embryos. However, section 12 says that people who donate sperm or eggs and women who are surrogate mothers can be reimbursed for their expenses. Section 2 of the [https://canlii.ca/t/9858 regulation] that talks about reimbursement says this about people who are donating sperm or eggs:


Under s. 33(1) a parentage test can be a human leukocyte antigen test, a DNA test, or "any other test the court considers appropriate." These are your choices:
<blockquote><tt>The following expenditures incurred by a donor in the course of donating sperm or ova may be reimbursed under subsection 12(1) of the Act:</tt></blockquote>
<blockquote><blockquote><tt>(a) travel expenditures, including expenditures for transportation, parking, meals and accommodation;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) expenditures for the care of dependants or pets;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) expenditures for counselling services;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) expenditures for legal services and disbursements;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) expenditures for obtaining any drug or device as defined in section 2 of the Food and Drugs Act;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) expenditures for obtaining products or services that are provided or recommended in writing by a person authorized under the laws of a province to practise medicine in that province;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) expenditures for obtaining a written recommendation referred to in paragraph (f);</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) expenditures for health, disability, travel or life insurance coverage; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) expenditures for obtaining or confirming medical or other records.</tt></blockquote></blockquote>


*'''Human leukocyte antigen tests:''' Human leukocyte antigen tests are a kind of advanced blood test that looks at the genetic markers on white blood cells to determine the likelihood that the child's antigens were inherited from a particular man. Their accuracy is northward of 96% but can be spoofed if the purported father has had a recent transfusion.
Section 4 of the regulation says this about surrogate mothers:
*'''Deoxyribonucleic acid tests:''' DNA tests look for overlaps in the child's unique genetic code with the genetic code from the purported father and the child's mother. Today's DNA tests deal with the probability of fatherhood in terms approaching absolute certainty; if a DNA test shows a man is probably the father, the odds that the test is wrong are about 0.0001%. Testing is performed on biological samples, most commonly blood samples. It is possible to have tests conducted based on mouth swabs.
*'''Chorionic villi sampling:''' This is a prenatal procedure that can be performed during the 10th to 13th week of pregnancy. It consists of a DNA test on a sample of the baby's placenta. It is an unpleasant procedure that must be conducted either through the mother's cervix or her abdominal wall.
*'''Amniocentesis:''' This is a prenatal procedure that can be performed during the 14th to 24th week of pregnancy. It consists of a DNA test on a sample of amniotic fluid drawn through the mother's abdominal wall.


The DNA of a child is a combination of the DNA of the child's mother and father. DNA tests compare the child's DNA to that of the father and mother, and provide a calculation of the odds that the man is the child's father. Because of the accuracy of DNA testing, a positive result will prove extremely convincing to a court. Unless you have a doctorate in genetics or convincing proof that a sample was tampered with, I don't recommend that you challenge the results of a DNA test. Save your money.
<blockquote><tt>The following expenditures incurred by a surrogate mother in relation to her surrogacy may be reimbursed under subsection 12(1) of the Act:</tt></blockquote>
<blockquote><blockquote><tt>(a) travel expenditures, including expenditures for transportation, parking, meals and accommodation;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) expenditures for the care of dependants or pets;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) expenditures for counselling services;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) expenditures for legal services and disbursements;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) expenditures for obtaining any drug or device as defined in section 2 of the Food and Drugs Act;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) expenditures for obtaining products or services that are provided or recommended in writing by a person authorized under the laws of a province to assess, monitor and provide health care to a woman during her pregnancy, delivery or the postpartum period;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) expenditures for obtaining a written recommendation referred to in paragraph (f);</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) expenditures for the services of a midwife or doula;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) expenditures for groceries, excluding non-food items;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(j) expenditures for maternity clothes;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(k) expenditures for telecommunications;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(l) expenditures for prenatal exercise classes;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(m) expenditures related to the delivery;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(n) expenditures for health, disability, travel or life insurance coverage; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(o) expenditures for obtaining or confirming medical or other records.</tt></blockquote></blockquote>


A number of companies in British Columbia, such as [http://www.genetrackcanada.com Genetrack Biolabs], [http://www.thednalab.com Maxxam Analytics] and [http://www.orchidcellmark.ca Orchid PRO-DNA], will perform paternity tests at a cost of between $400 and $800 plus taxes.
Sections 6, 7, 8, 9 and 11 of the regulation describe the conditions that have to be met before the expenses of someone donating sperm or eggs or a surrogate mother can be reimbursed.  


===Arranging for a parentage test===
Under section 8 of the legislation, the ''Assisted Human Reproduction Act'', someone who donates sperm or eggs must consent, in writing, to the use of their sperm or eggs to make an embryo. The [https://canlii.ca/t/7z6h regulation] that says how consent under section 8 is to be given describes the information a donor has to be given about the intended use of their sperm or eggs, and the things that have to be in the written consent. The regulation also says that a donor who wants to withdraw their consent has to give notice of the withdrawal of their consent in writing.


If the mother and the purported father agree to have a paternity test conducted, no order of the court is necessary. You simply <span class="noglossary">contact</span> the appropriate company and arrange to have blood or saliva samples taken and tested. The results will be delivered to you directly. These companies even offer home sampling kits at a somewhat lower rate.
The ''Assisted Human Reproduction Act'' and its regulations are highly technical and can be difficult to get through. If you are planning on having a child by assisted reproduction, it's important to speak to a lawyer who specializes in assisted reproduction. They'll be able to tell you what you can and can't do, and what the rules are.


Where the parties don't agree to a test, one of them, usually the alleged father, must make an application to court for an order that samples be taken from the parties and the child and that a paternity test be conducted under s. 33(2) of the ''Family Law Act''. Under s 33(3), the court can also make an order about who must pay for the cost of the test.
===The ''Family Law Act''===


==Assisted reproduction==
Section 26(1) of the ''[[Family Law Act]]'' says that the "parents" of a child are usually the child's birth mother and biological father. However, sections 24, 27, 29 and 30 have different rules when a child is conceived using artificial reproduction, and other rules which allow people to make an agreement that specifies who the parents of a child will be when the child is conceived using artificial reproduction.


Assisted reproduction relies on the assistance of, and often genetic contributions from, other people to create a child. It is necessary when:
====People who donate sperm or eggs====


*a single person wants to have a child,
Under section 24 of the ''[[Family Law Act]]'', the donor of sperm or eggs is ''not'' the parent of a child conceived by artificial reproduction merely because of the donation, and may not be declared to be a parent of a child. This section is very important. It means that a person can donate sperm or eggs without worrying that they will be a legal parent of any resulting child, and potentially be liable to support that child at some point in the future.
*one or both people in an opposite-sex relationship are infertile or the woman is unable to carry a baby to term,
*a couple in a same-sex relationship want to have a child and they want the child to share in the genetic heritage of at least one of them, or
*a couple wish to include another person as the parent of their child.


Whatever circumstances are at hand, assisted reproduction inevitably involves of one or more of:
A donor ''can'' be a parent, on the other hand, if the intended parents and the donor sign a written assisted reproduction agreement before the child is conceived that says that the donor will be a parent. Donors who are parents under an assisted reproduction agreement are parents for all purposes of the law in British Columbia under the ''Family Law Act''; they are presumed to be the guardians of a child, they are entitled to ask for parenting time with their child and decision-making responsibilities for their child, and they may be required to support their child.


*the use of donated eggs,
====Surrogate mothers====
*the use of donated sperm, and
*the cooperation of a woman who will carry the baby to term.


The 2004 federal ''[http://canlii.ca/t/7vzj Assisted Human Reproduction Act]'' regulates the scientific and commercial aspects of assisted reproduction. From a family law perspective, the important parts of this act make it illegal to sell eggs or sperm, and say that a surrogate mother can't be paid for her services but she can be compensated for her expenses.
A surrogate mother qualifies as a "birth mother" under the act. As a result, surrogate mothers ''are'' presumed to be the parents of their children under sections 26 and 27 of the ''[[Family Law Act]]'', the opposite of the presumption that applies to people who donate sperm or eggs. However, a surrogate mother will ''not'' be a parent if the intended parents and the surrogate mother sign a written assisted reproduction agreement before the child is conceived that says that the surrogate mother will not be a parent.


The provincial ''[[Family Law Act]]'' lets people make agreements when they are having a child by assisted reproduction that say which of the parties to the agreement will and won't be a legal parent of the child. Under the act, a child can have up to five parents if everyone agrees: up to two people who intend to have the child; an egg donor; a sperm donor; and, a surrogate mother.
Without an assisted reproduction agreement, the child's parents will be presumed to be the surrogate mother and the biological father, and the surrogate mother will be a parent for all purposes under the ''Family Law Act'', including the parts of the act that talk about guardianship, parenting after separation, and child support.


===Donors===
====Spouses of surrogate mothers====


Under s. 24 of the ''Family Law Act'' the donor of eggs or sperm is not the parent of a child merely because of the donation, and may not be declared to be a parent of a child. This section is very important. It means that a person can donate eggs or sperm without worrying that they will be asked to pay child support down the road.
Under section 27 of the act, a person who is the married spouse of a surrogate mother, or living in a "marriage-like relationship" with a surrogate mother, is presumed to be a parent of the child, unless there is proof that, before the child was conceived, the person:


A donor can be a parent if the intended parents and the donor sign a written assisted reproduction agreement before the child is conceived that says that the donor will be a parent. Donors who are parents under an assisted reproduction agreement are parents for all purposes under the ''Family Law Act''; they are presumed to be the guardians of a child and may be required to pay child support for the benefit of the child.
*did not consent to be the child's parent, or
*withdrew their consent to be the child's parent.


===Surrogate mothers===
Under section 30, a person who is the married spouse of a surrogate mother, or living in a marriage-like relationship with a surrogate mother, can also be a parent if everyone involved signs written assisted reproduction agreement, before the child is conceived, that says the person will be a parent.


A surrogate mother is a birth mother who is presumed to be the parent of a child under ss. 26 and 27 of the ''Family Law Act''. However, a surrogate mother will not be a parent if the intended parents and the surrogate mother sign a written assisted reproduction agreement before the child is conceived that says that the surrogate mother will not be a parent.
People who are the married spouse of a surrogate mother, or living in a marriage-like relationship with a surrogate mother, and are a parent of the child the surrogate mother gave birth to, are parents for all purposes under the ''Family Law Act'', including the parts of the act that talk about guardianship, parenting after separation, and child support.


Without an assisted reproduction agreement, the child's parents will be presumed to be the surrogate mother and the child's biological father, and the surrogate mother will be a parent for all purposes under the ''Family Law Act''.
====Assisted reproduction after death====


===Assisted reproduction after death===
When people try to have a child through assisted reproduction, including through in vitro fertilization when no one other than the intended parents are involved, the laboratory will commonly store a lot more sperm, eggs and sometimes zygotes than are needed right away. This is especially common where multiple attempts may be needed to have a successful pregnancy. Sometimes, however, someone who has donated sperm or eggs dies before the child is conceived.
====What happens if the donor dies?====
People who aim to have children by assisted reproduction including through ''in vitro'' fertilization when no one other than the intended parents are involved ― often freeze eggs, sperm and embryos for future use. This is especially common where multiple attempts may be necessary to have a successful pregnancy. It sometimes happens that one of the people who provide the genetic <span class="noglossary">material</span> dies before a child is conceived.


Section 28 of the ''Family Law Act'' says that when the donor dies before the child is conceived and there is proof that the donor:
Section 28 of the ''[[Family Law Act]]'' says what happens if a donor dies before the child is conceived. As long as there is proof that the donor consented to the use of their sperm or eggs to conceive a child, consented to being a parent of a child conceived after their death, and did not withdraw their consent before they died, the parents of a child conceived with the genetic material or embryo are the deceased donor and the donor's married spouse or the person who lived in a marriage-like relationship with the donor.


*consented to the use of the genetic <span class="noglossary">material</span> or embryo by his or her married or unmarried spouse,
Section 29 says that if an intended parent dies, they will still be a parent of the child as long as the child was conceived before their death.
*consented to being the parent of a child conceived after his or her death, and
*did not withdraw his or her consent before death,


the parents of a child conceived with the genetic material or embryo are the deceased donor and the donor's married or unmarried spouse.
As long as a child was conceived before an intended parent dies, section 29 of the ''Family Law Act'' says that the intended parent will still be the parent of the child, providing that:


====What happens if the intended parent dies?====
*the surrogate mother gives her written consent to surrender the child to the executor or other person acting in the place of the deceased intended parent or intended parents, and
Sometimes circumstances can play out in unexpected ways. For instance, an intended parent designated under a surrogacy agreement may die before the child is born. As long as the child has been conceived, section 29 of the ''Family Law Act'' says that the intended parent will still be the parent in the eyes of the law, provided that:
*the executor, or other person acting in the intended parent's or intended parents' place, takes the child into their care.
* the surrogate mother gives her written consent to surrender the child to the executor or other person acting in the place of the deceased intended parents, and
*the executor or other person takes the child into their care.


==Resources and links==
==Resources and links==
Line 117: Line 132:
===Legislation===
===Legislation===


* ''[[Family Law Act]]''
* ''[https://canlii.ca/t/54wtdFamily Law Act]''
* ''[http://canlii.ca/t/84g5 Adoption Act]''
* ''[https://canlii.ca/t/84g5 Adoption Act]''
* ''[http://canlii.ca/t/7vzj Assisted Human Reproduction Act]''
* ''[https://canlii.ca/t/7vzj Assisted Human Reproduction Act]''
* ''[http://canlii.ca/t/84fk Vital Statistics Act]''
* ''[https://canlii.ca/t/84fk Vital Statistics Act]''
* [https://canlii.ca/t/53p8s Reimbursement Related to Assisted Human Reproduction Regulations]
* [https://canlii.ca/t/544xn Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations]


===Links===
===Links===


* [http://www.genetrackcanada.com Genetrack Biolabs]
* [https://bit.ly/3T6Oc1h In Vitro Fertilization for Infertility] from HealthLink BC
* [http://www.orchidcellmark.ca Orchid PRO-DNA]
 
* [http://www.thednalab.com Maxxam Analytics]




{{REVIEWED | reviewer = [[Stephen Wright]] and [[Michael Sinclair]], October 24, 2014}}
{{REVIEWED | reviewer = [[JP Boyd]], April 8, 2021}}


{{JP Boyd on Family Law Navbox|type=chapters}}
{{JP Boyd on Family Law Navbox|type=chapters}}

Latest revision as of 18:05, 8 August 2024

Once upon a time, not all that long ago in fact, sex was the only way to have a child, and if people couldn't have a child for some reason, they either went without or looked at adoption. These days, with the help of technology, it's possible to have that child using donated eggs or sperm, or with the help of a surrogate mother.

This section talks about assisted reproduction, the federal Assisted Human Reproduction Act and the rules in the provincial Family Law Act about determining who is a parent when a child has been conceived through assisted reproduction.

Introduction

Assisted reproduction relies on the help of other people to conceive a child. It is necessary when:

  • a person wants to have a child without someone else also being a parent of that child,
  • the people involved in an opposite-sex relationship are infertile or a woman can't carry a baby to term,
  • the people involved in a same-sex relationship want to have a child, and they want the child to share the genetic heritage of at least one of them, or
  • a couple wish to include one or more other people as the parents of their child.

Whatever the circumstances might be, having a child through assisted reproduction often involves one or more of:

  • the use of donated eggs,
  • the use of donated sperm, and
  • the cooperation of a woman who will carry the baby to term as a surrogate mother.

The federal Assisted Human Reproduction Act regulates the scientific and commercial aspects of assisted reproduction. From a family law perspective, the important parts of this act make it illegal to sell eggs or sperm, and say that a surrogate mother can't be given money for her services apart from compensation for her expenses.

The provincial Family Law Act lets people who are having a child by assisted reproduction decide who will and won't be a legal parent of their child, by making an agreement in writing before the child is conceived. (This part of the act is awesome because it lets people decide who the parents of a child will be, for all purposes of the law of British Columbia, without having to go to court to get an order saying who the parents of a child are.) Under the Family Law Act, a child can have up to six legal parents if everyone agrees:

  • up to two people who intend to have the child,
  • a donor of eggs,
  • a donor of sperm,
  • a surrogate mother, and
  • the spouse of a surrogate mother.

Assisted reproduction processes

Assisted reproduction refers to the use of different kinds of strategies or technologies to help people conceive and carry a child to term when they can't or would rather not do so through natural reproduction. ("Natural reproduction," of course, is a fancy way of saying sex.) Assisted reproduction may be necessary when a person wants to have a child on their own, when the people involved in a family relationship are of the same sex, when the people in an opposite-sex relationship can't have a child on their own for some reason, or if there are more than two people who want to be the parents of a child, which might be the case for people involved in a polyamorous relationship. Problems involving sterility and infertility may be addressed through the use of sperm or eggs donated by someone else, while problems involving carrying a pregnancy to term may be addressed by having another woman carry the pregnancy as a surrogate mother.

Sometimes "assisted reproduction" refers to medications or medical procedures intended to help a woman ovulate and release an egg that can be fertilized by a man's sperm. Most of the time assisted reproduction refers to fertilization of eggs outside the body in a laboratory setting, called "in vitro fertilization." In cases like this, eggs are removed from a woman's ovaries and fertilized with a man's sperm in a petri dish. If the fertilization is successful, the fertilized egg — called a zygote — is surgically implanted in a woman's uterus, and it is expected that the zygote will develop into a fetus, be carried to term, and be delivered.

There are also cases where people attempt to fertilize an egg at home, outside a laboratory, using something like a poultry baster to introduce sperm directly into a woman's vagina, and from there into her uterus and into her fallopian tubes where fertilization occurs.

Laboratory processes can be extremely expensive and time-consuming, taking tens of thousands of dollars and many months to fertilize and implant a zygote and bear the fetus to term. Home-based processes, while perhaps less likely to result in a viable pregnancy, at least have the benefit of being cheap and possibly more fun.

The legislation about assisted reproduction

The two laws that provide the rules about assisted reproduction are the federal Assisted Human Reproduction Act and the provincial Family Law Act. The Assisted Human Reproduction Act regulates scientific research using sperm, eggs and zygotes, the commercial uses of sperm, eggs and zygotes, and how people arrange to have a child through assisted reproduction. The Family Law Act talks about who are the parents of children conceived by assisted reproduction and how people make agreements determining who the parents of such children will be.

The Assisted Human Reproduction Act

The highlights of the Assisted Human Reproduction Act, for people wanting to have a child by assisted reproduction, are these.

Under section 6, women cannot be paid for acting as a surrogate mother, and it is illegal to be paid to connect people who need a surrogate mother with women willing to be a surrogate mother. Under section 7, it is illegal to sell sperm, eggs and embryos. However, section 12 says that people who donate sperm or eggs and women who are surrogate mothers can be reimbursed for their expenses. Section 2 of the regulation that talks about reimbursement says this about people who are donating sperm or eggs:

The following expenditures incurred by a donor in the course of donating sperm or ova may be reimbursed under subsection 12(1) of the Act:

(a) travel expenditures, including expenditures for transportation, parking, meals and accommodation;

(b) expenditures for the care of dependants or pets;

(c) expenditures for counselling services;

(d) expenditures for legal services and disbursements;

(e) expenditures for obtaining any drug or device as defined in section 2 of the Food and Drugs Act;

(f) expenditures for obtaining products or services that are provided or recommended in writing by a person authorized under the laws of a province to practise medicine in that province;

(g) expenditures for obtaining a written recommendation referred to in paragraph (f);

(h) expenditures for health, disability, travel or life insurance coverage; and

(i) expenditures for obtaining or confirming medical or other records.

Section 4 of the regulation says this about surrogate mothers:

The following expenditures incurred by a surrogate mother in relation to her surrogacy may be reimbursed under subsection 12(1) of the Act:

(a) travel expenditures, including expenditures for transportation, parking, meals and accommodation;

(b) expenditures for the care of dependants or pets;

(c) expenditures for counselling services;

(d) expenditures for legal services and disbursements;

(e) expenditures for obtaining any drug or device as defined in section 2 of the Food and Drugs Act;

(f) expenditures for obtaining products or services that are provided or recommended in writing by a person authorized under the laws of a province to assess, monitor and provide health care to a woman during her pregnancy, delivery or the postpartum period;

(g) expenditures for obtaining a written recommendation referred to in paragraph (f);

(h) expenditures for the services of a midwife or doula;

(i) expenditures for groceries, excluding non-food items;

(j) expenditures for maternity clothes;

(k) expenditures for telecommunications;

(l) expenditures for prenatal exercise classes;

(m) expenditures related to the delivery;

(n) expenditures for health, disability, travel or life insurance coverage; and

(o) expenditures for obtaining or confirming medical or other records.

Sections 6, 7, 8, 9 and 11 of the regulation describe the conditions that have to be met before the expenses of someone donating sperm or eggs or a surrogate mother can be reimbursed.

Under section 8 of the legislation, the Assisted Human Reproduction Act, someone who donates sperm or eggs must consent, in writing, to the use of their sperm or eggs to make an embryo. The regulation that says how consent under section 8 is to be given describes the information a donor has to be given about the intended use of their sperm or eggs, and the things that have to be in the written consent. The regulation also says that a donor who wants to withdraw their consent has to give notice of the withdrawal of their consent in writing.

The Assisted Human Reproduction Act and its regulations are highly technical and can be difficult to get through. If you are planning on having a child by assisted reproduction, it's important to speak to a lawyer who specializes in assisted reproduction. They'll be able to tell you what you can and can't do, and what the rules are.

The Family Law Act

Section 26(1) of the Family Law Act says that the "parents" of a child are usually the child's birth mother and biological father. However, sections 24, 27, 29 and 30 have different rules when a child is conceived using artificial reproduction, and other rules which allow people to make an agreement that specifies who the parents of a child will be when the child is conceived using artificial reproduction.

People who donate sperm or eggs

Under section 24 of the Family Law Act, the donor of sperm or eggs is not the parent of a child conceived by artificial reproduction merely because of the donation, and may not be declared to be a parent of a child. This section is very important. It means that a person can donate sperm or eggs without worrying that they will be a legal parent of any resulting child, and potentially be liable to support that child at some point in the future.

A donor can be a parent, on the other hand, if the intended parents and the donor sign a written assisted reproduction agreement before the child is conceived that says that the donor will be a parent. Donors who are parents under an assisted reproduction agreement are parents for all purposes of the law in British Columbia under the Family Law Act; they are presumed to be the guardians of a child, they are entitled to ask for parenting time with their child and decision-making responsibilities for their child, and they may be required to support their child.

Surrogate mothers

A surrogate mother qualifies as a "birth mother" under the act. As a result, surrogate mothers are presumed to be the parents of their children under sections 26 and 27 of the Family Law Act, the opposite of the presumption that applies to people who donate sperm or eggs. However, a surrogate mother will not be a parent if the intended parents and the surrogate mother sign a written assisted reproduction agreement before the child is conceived that says that the surrogate mother will not be a parent.

Without an assisted reproduction agreement, the child's parents will be presumed to be the surrogate mother and the biological father, and the surrogate mother will be a parent for all purposes under the Family Law Act, including the parts of the act that talk about guardianship, parenting after separation, and child support.

Spouses of surrogate mothers

Under section 27 of the act, a person who is the married spouse of a surrogate mother, or living in a "marriage-like relationship" with a surrogate mother, is presumed to be a parent of the child, unless there is proof that, before the child was conceived, the person:

  • did not consent to be the child's parent, or
  • withdrew their consent to be the child's parent.

Under section 30, a person who is the married spouse of a surrogate mother, or living in a marriage-like relationship with a surrogate mother, can also be a parent if everyone involved signs written assisted reproduction agreement, before the child is conceived, that says the person will be a parent.

People who are the married spouse of a surrogate mother, or living in a marriage-like relationship with a surrogate mother, and are a parent of the child the surrogate mother gave birth to, are parents for all purposes under the Family Law Act, including the parts of the act that talk about guardianship, parenting after separation, and child support.

Assisted reproduction after death

When people try to have a child through assisted reproduction, including through in vitro fertilization when no one other than the intended parents are involved, the laboratory will commonly store a lot more sperm, eggs and sometimes zygotes than are needed right away. This is especially common where multiple attempts may be needed to have a successful pregnancy. Sometimes, however, someone who has donated sperm or eggs dies before the child is conceived.

Section 28 of the Family Law Act says what happens if a donor dies before the child is conceived. As long as there is proof that the donor consented to the use of their sperm or eggs to conceive a child, consented to being a parent of a child conceived after their death, and did not withdraw their consent before they died, the parents of a child conceived with the genetic material or embryo are the deceased donor and the donor's married spouse or the person who lived in a marriage-like relationship with the donor.

Section 29 says that if an intended parent dies, they will still be a parent of the child as long as the child was conceived before their death.

As long as a child was conceived before an intended parent dies, section 29 of the Family Law Act says that the intended parent will still be the parent of the child, providing that:

  • the surrogate mother gives her written consent to surrender the child to the executor or other person acting in the place of the deceased intended parent or intended parents, and
  • the executor, or other person acting in the intended parent's or intended parents' place, takes the child into their care.

Resources and links

Legislation

Links


This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, April 8, 2021.


JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.