The Provinces and Territories Amend Their Family Laws
| Author | Maureen McTeer |
| Pages | 73-119 |
[ ]
– chapter nine –
The Provinces and Territories
Amend Their Family Laws
Spurred on originally by the courts and later by advocates within each
province, the legislatures have developed surprisingly similar rules for
parentage in situations of assisted reproduction and surrogacy. e prov-
incial and territorial legislatures have amended their family laws with
respect to parentage, drawing upon the model published by the Uniform
Law Conference of Canada (ULCC) as discussed in Chapter . Some of
the common basic principles are as follows:
) Generally, all children, whether conceived through sexual intercourse
or using assisted reproductive techniques and technologies, including
surrogacy, are deemed to be legitimate.
) Where a child is conceived through sexual intercourse, the man and
woman whether married or in a relationship of some duration and
living together at the time of the conception, are deemed to be the
parents of the child, unless and until evidence shows otherwise.
) e birth mother is always the legal mother of the child.
) Rules are set out to determine ways in which the above principle can
be altered, usually by a declaratory order of a court of competent
jurisdiction that uses evidence such as written consent documents
and agreements between the couple, the donor and the couple, or the
surrogate and the couple/individual.
[ ]
FERTILITY: 40 YEARS OF CHANGE
) Where surrogacy is involved, all arrangements must be made and
completed prior to fertilization, including consent to parent the child
to be created.
) e birth mother must consent twice to giving up her parentage
status with respect to the child — once after the child’s birth, and a
second time when the intended parents must bring an application
before the court seeking a declaration that they are the child’s par-
ents. is declaration will extinguish the birth mother’s status as that
child’s legal parent.
) Generally, a genetic link between the intended parent(s) and the child
to be created is preferable, although not always specically required.
) e requirement in almost all Canadian provinces that the use of
human reproductive material (ova, sperm, and embryo) is for a per-
son’s own reproductive use addresses, in large part, the policy purpose
of preventing the commercialization of surrogacy.
) e limitation to two of the number of persons who can be a child’s
legal parents, with a maximum of four in Ontario, gives clarity to
who is responsible legally for the care of a child, and who can act in all
situations on behalf of the minor-aged child. is in no way aects
the well-established practice within families and among close friends
(such as those acting as godparents, for instance) of helping to care
for and raise a child. Custom adoptions in Indigenous communities
are maintained as well.
) In all provinces but one, surrogacy arrangements are unenforceable.
In Quebec, they are null and void. However, Quebec’s proposed
family law reforms, set out in Bill , which was introduced in the
National Assembly in late , will alter that, bringing it more in
line with the situation in other provinces. e content of this bill,
titled An Act respecting law reform with regard to liation and amend-
ing the civil code in relation to personality rights and civil status, is
discussed at the end of the provincial chart for Quebec set out below.
) Applications for declaratory orders of parentage of parties to a surro-
gacy arrangement can only be made after the birth of the child.
) e forms used and procedure required for these applications are
generally standard and the court’s declaratory orders with respect to
parentage are recognized and enforceable across Canada, except if
there is new evidence brought before the court or there is fraud or
misrepresentation.
[ ]
e Provinces and Territories Amend eir Family Laws
e charts in this chapter summarize each province and territory’s
current family law legislation with respect to parentage where a child is
conceived using AHR technologies and/or the practice of surrogacy. Also
included is caselaw from each province and/or territory dealing with aspects
of parentage, which gives the reader an idea of what the courts have con-
sidered important as they address new individual and family relationships.
UISPUDENTIAL SUMMAY
British Columbia
: Family Law Act, SBC , c
Part — Parentage
Division — General Matters
Interpretation
() In this Part:
“assisted reproduction”means a method of conceiving a child other
than by sexual intercourse;
“birth mother”means the person who gives birth to, or is delivered of,
a child, regardless of whether her human reproductive material was
used in the child’s conception;
“donor”means a person who, for the purposes of assisted reproduction
other than for the person’s own reproductive use, provides
(a) his or her own human reproductive material, from which a child
is conceived, or
(b) an embryo created through the use of his or her human repro-
ductive material;
“embryo”means a human organism during the rst days of its
development following fertilization or creation, excluding any time
during which its development has been suspended, and includes any
cell derived from such an organism that is used for the purpose of
creating a human being;
“human reproductive material”means a sperm, an ovum or another
human cell or human gene, and includes a part of any of them;
To continue reading
Request your trial