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Difference between revisions of "Having Children with Assisted Reproduction"
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Having Children with Assisted Reproduction (view source)
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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. | 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. | ||
This | 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== | ==Determining parentage== | ||
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===The presumptions of fatherhood=== | ===The presumptions of fatherhood=== | ||
Only biological parents and people who are stepparents because | 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: | 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: | ||
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<blockquote><tt>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</tt></blockquote> | <blockquote><tt>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</tt></blockquote> | ||
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" | 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." | ||
*'''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. | *'''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. | *'''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 | *'''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 | *'''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 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. | 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. | ||
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===Arranging for a parentage test=== | ===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. | 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 | 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== | ||
Assisted reproduction relies on the assistance and often genetic contributions | 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, | *a single person wants to have a child, | ||
*one | *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. | *a couple wish to include another person as the parent of their child. | ||
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*the cooperation of a woman who will carry the baby to term. | *the cooperation of a woman who will carry the baby to term. | ||
The 2004 federal ''[http://canlii.ca/t/7vzj 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 2004 federal ''[http://canlii.ca/t/7vzj 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, and say which of the parties to the | 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 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=== | ===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 | 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. | 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. | ||
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===Assisted reproduction after death=== | ===Assisted reproduction after death=== | ||
People who | 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: | 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 his or her married or unmarried spouse, | *consented to the use of the genetic material or embryo by his or her married or unmarried spouse, | ||
*consented to | *consented to being the parent of a child conceived after his or her death, and | ||
*did not withdraw his or her consent before death, | *did not withdraw his or her consent before death, | ||
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* <span style="color: red;">bulleted list of other pages in this chapter, linked</span> | * <span style="color: red;">bulleted list of other pages in this chapter, linked</span> | ||
END HIDDEN---> | END HIDDEN---> | ||
== | ==Resources and links== | ||
===Legislation=== | ===Legislation=== | ||