Having Children with Assisted Reproduction

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.

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 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.

Determining parentage

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 Adoption Act. Section 24 says this:

(1) For all purposes of the law of British Columbia,

(a) a person is the child of his or her parents,

(b) a child's parent is the person determined under this Part to be the child's parent, and

(c) the relationship of parent and child and kindred relationships flowing from that relationship must be as determined under this Part.

(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.

Section 26(1) says who a child's parents are presumed to be:

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.

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 order 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.

The presumptions of fatherhood

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.

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:

(a) he was married to the child's birth mother on the day of the child's birth;

(b) he was married to the child's birth mother and, within 300 days before the child's birth, the marriage was ended

(i) by his death,

(ii) by a judgment of divorce, or

(iii) as referred to in section 21;

(c) he married the child's birth mother after the child's birth and acknowledges that he is the father;

(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;

(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

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.

Parentage tests

Under s. 33(2) of the Family Law Act, the court may

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

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:

• 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.
• 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.

A number of companies in British Columbia, such as Genetrack Biolabs, Maxxam Analytics, and Orchid PRO-DNA, will perform paternity tests at a cost of between $400 and $800 plus taxes.

Arranging for a parentage test

If the mother and the purported father agree to have a paternity test conducted, no order of the court is necessary. You simply contact 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.

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.

Assisted reproduction

Assisted reproduction relies on the assistance of, and often genetic contributions from, other people to create a child. It is necessary when:

• a single person wants to have a child,
• 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:

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

The 2004 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 paid for her services but she can be compensated for her expenses.

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.

Donors

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.

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.

Surrogate mothers

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.

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

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 material 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:

• consented to the use of the genetic material or embryo by their married or unmarried spouse,
• consented to being the parent of a child conceived after their death, and
• did not withdraw their 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.

What happens if the intended parent dies?

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 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

Legislation

• Family Law Act
• Adoption Act
• Assisted Human Reproduction Act
• Vital Statistics Act

Links

• Genetrack Biolabs
• Orchid PRO-DNA
• Maxxam Analytics

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Stephen Wright and Michael Sinclair, April 17, 2019.

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.