Difference between revisions of "Having Children with Assisted Reproduction"

{{JP Boyd on Family Law TOC|expanded = other}}

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 to have 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.

<blockquote><tt>(1) For all purposes of the law of British Columbia,</tt></blockquote>

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.

Only biological parents and people who are stepparents because their are in 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.  

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.

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

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.

If the mother and the purported father agree to have a paternity test conducted, no order of the court is necessary. The parties simply contact the appropriate company and arrange to have their 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 party, 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 order about who must pay for the cost of the test.

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

Whatever circumstances are at hand, assisted reproduction inevitably involves of one or more of:

The provincial ''Family Law Act'' lets people make agreements when they are having a child by assisted reproduction, and say which of the parties to the agree 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.

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.

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''.

People who expect to or have to have children by assisted reproduction, including though ''in vitro'' fertilization when no one other than 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:

the parents of a child conceived with the genetic material or embryo are the deceased donor and the donor's married or unmarried spouse.