Having Children with Assisted Reproduction: Difference between revisions

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 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.

Part 3 of the provincial ''Family Law Act'' provides a comprehensive scheme for determining the parentage of children that applies for all legal purposes in British Columbia, including for family law disputes and wills and estates matters, except when parentage is determined under the ''[http://canlii.ca/t/84g5 Adoption Act]''. Section 24 says this:

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

<blockquote><blockquote><tt>(a) a person is the child of his or her parents,</tt></blockquote></blockquote>

<blockquote><blockquote><tt>(b) a child's parent is the person determined under this Part to be the child's parent, and</tt></blockquote></blockquote>

<blockquote><tt>(2) For the purposes of an instrument or enactment that refers to a person, described in terms of his or her relationship to another person by birth, blood or marriage, the reference must be read as a reference to, and read to include, a person who comes within the description because of the relationship of parent and child as determined under this Part.</tt></blockquote>

Section 26(1) says who a child's parents are presumed to be:

<blockquote><tt>On the birth of a child not born as a result of assisted reproduction, the child's parents are the birth mother and the child's biological father.</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 <span class="noglossary">order</span> 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.

===The presumptions of fatherhood===

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 section 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:

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.

===Parentage tests===

Under section 33(2) of the ''[[Family Law Act]]'', the court may

<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 section 33(1), a parentage test can be a human leukocyte antigen test, a DNA test, or "any other test the court considers appropriate." These are your choices:

*'''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. 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.

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.

A number of companies serving British Columbia, such as [http://www.genetrackcanada.com Genetrack Biolabs], [https://www.thednalab.com The DNALAB], and [http://www.pro-adn.com Orchid PRO-DNA], will perform legally admissible paternity tests at a cost of around $480 to $500, plus taxes, for one child and an alleged father, with additional costs for more children or alleged fathers. For tests usable in a legal proceeding, the labs will require each person contributing samples to attend in person at an authorized sample collection location.

===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. You simply <span class="noglossary">contact</span> 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 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 section 33(2) of the ''Family Law Act''. Under section 33(3), the court can also make an order about who must pay for the cost of the test.

==Assisted reproduction==

*a single person wants to have a child,

*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.

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

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 that 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===

Under section 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 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''.

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 <span class="noglossary">material</span> 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:

*consented to the use of the genetic <span class="noglossary">material</span> 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,

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

* 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 parents, and

*the executor or other person takes the child into their care.

* ''[[Family Law Act]]''

* [http://www.genetrackcanada.com Genetrack Biolabs]

* [http://www.pro-adn.com Orchid PRO-DNA]

{{REVIEWED | reviewer = [[Stephen Wright]] and [[Michael Sinclair]], April 17, 2019}}