Difference between revisions of "Having Children with Assisted Reproduction"

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


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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 page 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.
This page 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==


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 ''Adoption Act''. Section 24 says this:
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><tt>(1) For all purposes of the law of British Columbia,</tt></blockquote>
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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.
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.


===The Presumptions of Fatherhood===
===The presumptions of fatherhood===


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.  
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.  
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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.
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===
===Parentage tests===


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


A number of companies in British Columbia, such as Genetrack Biolabs and Orchid PRO-DNA, will perform paternity tests at a cost of between $400 and $800 plus taxes.
A number of companies in British Columbia, such as [http://www.genetrackcanada.com Genetrack Biolabs] and [http://www.orchidcellmark.ca Orchid PRO-DNA], will perform paternity tests at a cost of between $400 and $800 plus taxes.


===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. 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.
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.
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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.
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==
==Assisted reproduction==


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


#a single person wants to have a child;
*a single person wants to have a child,
#one of both parties to an opposite-sex relationship are infertile or the woman is unable to carry a baby to term;
*one of both parties to an opposite-sex relationship are infertile or the woman is unable to carry a baby to term,
#the parties to a same-sex relationship want to have a child and they want the child to share in the genetic heritage of at least one party; or,
*the parties to a same-sex relationship want to have a child and they want the child to share in the genetic heritage of at least one party, 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.


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


#the use of donated eggs;
*the use of donated eggs,
#the use of donated sperm; and,
*the use of donated sperm, and
#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 ''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 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.
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.
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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.


===Surrogate Mothers===
===Surrogate mothers===


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.
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.
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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''.
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===
===Assisted reproduction after death===


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.
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.
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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 be the parent of a child conceived after his or her death; and,
*consented to be 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,


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

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