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 for a people who want a child to have that child using donated eggs or sperm, or with the help of a surrogate mother.

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

Introduction

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

1. a single person wants to have a child;
2. the people involved in an opposite-sex relationship are infertile or a woman is unable to carry a baby to term;
3. 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,
4. a couple want to include one or more other people as the parents of their child.

Whatever the circumstances are, having a child through assisted reproduction inevitably involves one or more of:

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

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 given money for her services apart from compensation 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. (This part of the act is really 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:

1. up to two people who intend to have the child;
2. a donor of eggs;
3. a donor of sperm donor;
4. a surrogate mother; and,
5. 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 don't want, to do so through natural reproduction. ("Natural reproduction," of course, is a fancy way of saying sex.) Assisted reproduction may be necessary when a single person wants to have a child on their own, when the people involved in a family relationship are of the same sex, when one of the people involved in an opposite-sex relationship is sterile or infertile, or when a woman is unable to carry a pregnancy to term. Problems involving sterility and infertility may be addressed through the use of sperm or eggs donated by a third-party, while problems involving carrying a pregnancy to term may be addressed by having another woman carry the pregnancy.

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, where it is expected that the zygote will develop into a fetus and be carried to term.

There are also cases where people attempt to fertilize an egg at home, outside a laboratory, using a device like a poultry baster to introduce the 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 years to implant a zygote and bear it to term. Home-based processes, while perhaps less likely to result in a viable pregnancy, at least have the benefit of being cheap.

Assisted reproduction agreements

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.

Donors

Under section 24 of the Family Law Act, the donor of eggs or sperm 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 eggs or sperm 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 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 sections 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 what happens if 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.

In that case, 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, or intended parents, 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 (or intended parents) will still be the parent (or parents) 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 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

• 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.