Legal Parentage: Who is a “parent” under the Family Law Act (FLA) in BC?
Who is considered to be the legal parent(s) of a child is now defined in BC under Part 3 of the Family Law Act (FLA). A child’s parents under the FLA may be one or more of the following:
- A child’s birth mother.
- A child’s biological father.
- People using assisted reproduction (a method of conceiving a child other than by sexual intercourse) who may or may not be genetically related to the child.
- People using assisted reproduction to conceive a child and by way of agreement identify who will and will not be parents of the child.
When there is no assisted reproduction, e.g. the child is conceived by way of sexual intercourse, the parents will be the child’s birth mother and biological father (section 26 of the FLA).
What is Assisted Reproductive Technology (ART)?
Assisted Reproductive Technology (ART) includes donor insemination, in vitro fertilization (IVF), inter uterine insemination (IUI) and surrogacy. There are numerous reasons that people use ART, such as:
- One or both members of an opposite-sex couple (heterosexual) is infertile, and/or unable to carry a child.
- A single person wants to have a child.
- One or both prospective parents in a couple is infertile.
- A lesbian couple or a gay couple wants to have a child.
- One or both members of a couple is transgender.
- A couple wants to include a donor or surrogate parent as part of a three parent or multi-parent family.
Reproduction agreements for donors, surrogates and intended parents
At Suleman Family Law, we can draft the appropriate reproduction agreement to protect you and any other parties involved in the conception of a child using assisted reproduction. It is necessary to enter into this agreement before the child is conceived.
When assisted reproduction is used to conceive a child, donors of any genetic material, e.g. sperm, egg or embryo, are NOT presumed to be the child’s parents (section 24 of the FLA). The child’s birth mother is a parent, even if the birth mother is not genetically related to the child, e.g. donor egg or donor embryo was used (section 27 of the FLA). In addition, a person who was married to, or in a marriage-like relationship with, the child’s birth mother when the child was conceived is also the child’s parent unless there is proof that, before the child was conceived, the person did not consent or withdrew consent to be a parent.
For example: After living together for 2 years, Simi and Katherine decide to have a baby. Their friend Michael is their sperm donor and Simi will carry the child. In this scenario, Simi is the birth mother, Katherine is the child’s parent under section 27 of the FLA and Michael is the donor.
When a child is conceived by assisted reproduction, people can make a pre-conception agreement as to who will be a parent. This can include a combination of intended parents, sperm donor, egg donor and surrogate (section 30 of the FLA). This agreement needs to be made prior to conception and no parties can withdraw from the agreement prior to conception for the agreement to be valid. As a result of these preconception agreements there may be more than 3 parents of the child.
A surrogate mother is presumed to be the birth mother and parent of a child conceived by this form of assisted reproduction regardless of any genetic connection the surrogate may have to the child (section 29 of the FLA). Intended parents and the surrogate must have a written surrogacy agreement prior to the conception of the child that confirms that the surrogate will not be a parent to the child, the surrogate will surrender the child to the intended parents, and the intended parents are to be the parents of the child. Surrogacy agreements are governed under the federal Assisted Human Reproduction Act (AHRA) which outlines specific legal rights for surrogates.
For more information on assisted reproduction and the Family Law Act, please visit Our Publications to read the paper Baby Steps: Assisted Reproductive Technology and the B.C. Family Law Act, co-authored by Zara Suleman.
How can Suleman Family Law help you with your reproduction agreement?
If you need a donor, surrogacy or intended parent agreement, our experienced family law lawyer Zara Suleman would be happy to help you. Please visit our Getting Started page to learn about the first steps for any of our new clients. Here’s what you need to know specifically about having an agreement drafted:
- The agreement must be signed by all parties before conception of the child. This means planning ahead so that we have time to get your agreement fully complete and signed in advance of insemination, transfer of embryo, etc.
- We will ask you for a variety of information so that we can create the best agreement possible. Providing complete and accurate information is an important part of the process.
- It will be important for all parties to obtain their separate independent legal advice on the draft agreement.
If you will be conceiving with the assistance of sperm or egg donors, have the important conversations with your donors, that cover such issues as (but not limited to):
- What role the donor will or will not play in the child’s life.
- If, how, when and by whom the child will be told about their genetic donor.
- What will happen with the donation should the intended parents separate or become deceased.
At Suleman Family Law, we will work with you to make drafting a donor, surrogacy or any reproduction agreement less stressful so that your focus can be on the exciting new (or continued) journey of being a parent(s).
Please contact Suleman Family Law for more information or to schedule an appointment.
Please visit our Resources and Publications page for additional resources and publications.
