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, 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 9 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

• Law Act
• Adoption Act
• Assisted Human Reproduction Act
• Vital Statistics Act
• Reimbursement Related to Assisted Human Reproduction Regulations
• Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations

Links

• In Vitro Fertilization for Infertility from HealthLink BC

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.