Current Uniform Acts

Assisted Human Reproduction Working Group Report 2009


FOOTNOTES

[1] J. Gunby, F. Bissonnette & C. Librach, “Assisted reproductive technologies in Canada: 2005 results from the Canadian Assisted Reproductive Technologies Register” (2008) 91 Fertility and Sterility 1721 – says the most common reason for AHR treatment was a single male’s or single female’s infertility.

[2] Throughout this paper, conception that occurs as a result of sexual intercourse between a man and a woman who are the biological parents of a child is called “natural conception” and conception that occurs without sexual intercourse is called assisted human reproduction or assisted conception.  The authors recognize that people may feel discomfort with calling one form of reproduction “natural”, but this term has been adopted to shorten and simplify the language in this paper.  Jurisdictions may wish to adopt other, less contentious terms for public communications and statutory language.

[3] It is estimated that up to 30% of situations involve same-sex couples.  As well, it appears that the most common method by which lesbian couples or single women conceive children is through some form of assisted reproduction using anonymous donor sperm – Fiona Kelly, “Nuclear Norms or Fluid Families? Incorporating Lesbian and Gay Parents and their Children into Canadian Family Law” (2004) 21 Can.J.Fam.L. 133-178.

[4] Norris, Sonya. Reproductive Infertility: Prevalence, Causes, Trends and Treatments. PRB 00-32E.  Ottawa: Parliamentary Information and Research Service, Library of Parliament, Ottawa, 2 January 2001.

[5]  Ibid. – based on the inability to conceive after two years.

[6] Lori E. Ross, Leah S. Steele & Rachel Epstein, “Lesbian and bisexual women’s recommendations for improving the provision of assisted reproductive technology services” (2006) 86 Fertility and Sterility 735 – estimated cost for services associated with semen for donor insemination is between $700 and $950 Cdn. per cycle in Toronto.

[7] Lori E. Ross, Leah S. Steele & Rachel Epstein, “Service Use and Gaps in Services for Lesbian and Bisexual Women During Donor Insemination, Pregnancy, and the Postpartum Period” (2006) JOGC 505 – talks about the limited selection of donor semen for women who were not Caucasian or whose partners were not Caucasian and want to have a child of ethno-cultural background.  Also talked about is the limited number of cases of identity-release donors available and concern for those who use AHR.

[8] Statistics Canada, Births – 2006 (Statistics) – Catalogue no. 84F0210X.

[9] IVF births comprise 2909 of the 3,492 IVF-FET births, but the 583 births from FET were excluded from the analysis because data on sperm source is not collected for FET treatments (Canadian Assisted Human Reproductive Technology Register CFAS data – 2005).

[10] CFAS does not collect data on whether the partners are same-sex or opposite sex, but all couples that do not require donated gametes are obviously opposite sex, while donated gametes could be for opposite or same-sex partners or single women.  Correspondence from AHR Canada.

[11] Lori E. Ross, Leah S. Steele & Rachel Epstein, “Service Use and Gaps in Services for Lesbian and Bisexual Women During Donor Insemination, Pregnancy, and the Postpartum Period” (2006) JOGC 505 –  the estimated cost for services associated with donor semen for artificial insemination is between $700 and $950 per cycle in Toronto, compared with $6,000 for a basic IVF cycle and an additional $3,500 in drugs (http://www.ivfcanada.com/services/fees/general_fee_schedule.cfm).

[12] Canada, Royal Commission on New Reproductive Technologies, Proceed with Care:  Final Report of the Royal Commission on New Reproductive Technologies, Vol. 1 (Ottawa: Canada Communications Group, 1993) at 435.

[13] With the exception of Quebec’s Civil Code and Alberta’s Family Law Act.

[14] The Working Group reviewed the Uniform Law Conference of Canada’s Uniform Child Status Act (April 1992);  the federal Assisted Human Reproduction Act (S.C. 2004, c. 2); the Standing Committee on Health report (ibid.); prepared a chart summarizing relevant provisions of provincial and territorial legislation; considered relevant Canadian case law; reviewed the New Zealand Law Commission, New Issues in Legal Parenthood, Report 88 (Wellington, New Zealand: Law Commission, 2005) (http://www.lawcom.govt.nz/UploadFiles/Publications/Publication_91_315_R88.pdf); and considered the report prepared for Alberta by Professor Christine Davies, Q.C., Parentage and Artificial Reproductive Technology (2006) and shared with Working Group.

[15] Ibid., New Zealand Law Commission, at 14, para. 2.19.

[16] Ibid. at 15, para. 3.2.

[17] The exception is Alberta, which amended its child status legislation to accommodate the use of AHRCharter litigation in Alberta has resulted in the extension of automatic parental status to same-sex spouses and partners in some circumstances.  See Fraess v. Alberta, 2005 ABQB 889, 278 D.L.R. (4th) 187, 23 R.F.L. (6th) 101 (Alta. Q.B.).

[18] “Brave New Family – Part 1”, Ideas, Paul Kennedy, CBC Radio One, February 18, 2008.

[19] Article 2(1) to “…respect and ensure the rights set forth…to each child within their jurisdiction without discrimination of any kind” and under Article 2(2) to “…take all appropriate measures to ensure that the child is protected against all forms of discrimination…”  Article 3(1) requires “…all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”  Article 3(2) requires States Parties to “…ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents,...and, to this end, shall take all appropriate legislative and administrative measures.”  Article 5 requires States Parties “…shall respect the responsibilities, rights and duties of parents…” and Article 18(1) calls on States Parties to “…use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child.…”  Article 7(1) says “The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.”  Article 9(1) states that “States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.”  Article 34 states, “States Parties undertake to protect the child from all forms of sexual exploitation…” and Article 32 states, “…the right of the child to be protected from economic exploitation…”

[20] Similar principle to the approach of the Royal Commission on New Reproductive Technologies – Supra note 12.

[21] For example, at common law parental rights and responsibilities are inalienable and incapable of transfer as a matter of contract – see Ontario Law Reform Commission, Report on Human Artificial Reproduction and Related Matters, Vol. I (Toronto: Ontario Ministry of the Attorney General, 1985) at 99.  Also, a child generally has two parents and the birth mother is generally recognized as the mother, except for adoption, and the “father” is determined by presumption, declaration or court order.

[22] Nicole LaViolette, “Dad, Mom – and Mom: The Ontario Court of Appeal’s Decision in A.A. v. B.B.” (2008) 86 Can. Bar Rev. 665.

[23] Ibid. at 667.

[24] [2003] 2 NZLR 787.

[25] Supra note 14 at 65, para. 6.50.

[26] Supra note 24 at 8.

[27] Jennifer Rice and Madeleine McNiece, “The experience of Australian relinquishing mothers in open adoption:  Contact, grief and psychological adjustment” (Paper presented to the Second International Conference on Adoption Research, Norwich, UK, July 17-21, 2006) [unpublished] – http://www.uea.ac.uk/swp/icar2/pdf's/rice66.pdf.

[28] Quebec Civil Code, S.Q. 1991, c 64, arts. 538-42. 

[29] Supra note 7 – talked of women facing uncertainty regarding the parental rights of same-sex families should a known donor later petition for custody or access and this uncertainty lead women to establish a contract with their donor before insemination.

[30] 2007 ABCA 50, [2007] 4 W.W.R. 12, 278 D.L.R. (4th) 1.

[31] www.azstarnet.com/sn/news/292312.php

[32] Human Fertilization and Embryology Act 1990 (U.K.), 1990, c. 37, s. 30.

[33] Supra note 14 at 66-67.

[34] Ibid. at 69.

[35] Victorian Law Reform Commission, Assisted Reproductive Technology and Adoption: Position Paper Two: Parentage (July 2005) (Melbourne, Australia: Victorian Law Reform Commission, 2005).

[36] Jenni Millbank, “The Limits of Functional Family; Lesbian Mother Litigation in the Era of the Eternal Biological Family” (2008) 22 Int’l J.L. Pol’y & Fam. 149.

[37] Supra note 3.

[38] The following circumstances are included here:

  • if the child is conceived after the death of the person using genetic material provided by the person before death;
  • if the child is conceived after the death of the person using genetic material obtained from the person after death ; or
  • if the in vitro embryo is created before or after the death of the person using genetic material obtained from the person before death (e.g., cryopreserved embryos) and implanted after the person’s death.
Conception may not technically be the appropriate terminology when dealing with in vitro embryo use, but is used as a general term in this instance.

[39] Note the AHR Canada legislation is currently under challenge in the Supreme Court of Canada.

[40] Ontario:  The Perpetuities Act, 1966, S.O. 1966, c. 113; Alberta, The Perpetuities Act, S.A. 1972, C 121, British Columbia, The Perpetuities Act, S.B.C. 1975, c. 53; Manitoba, The Perpetuities and Accumulations Act, RS.M. 1982-83-84, c. 43. 

[41]The Human Fertilisation and Embryology Act 2008, which came into force April 2009, contains a provision s. 48(3) and (4) which limits recognition of the parent for any purpose other than parental status under this legislation.

[42] For example, see The Dependants’ Relief Act, Chapter D-25.01 of the Statutes of Saskatchewan 1996, section 4 which limits the time for bringing an application to six months from the grant of probate of the will or letters of administration.

[43]  Supra note 14 at xxvii

[44] R.S.S. 1978, c. H-15.

[45] Manitoba, Law Reform Commission, Posthumously Conceived children:  Intestate Succession and Dependants’ Relief; The Intestate Succession Act: Sections 1(3), 6(1), 4(5), 4(6) and 5, Report #118 (Winnipeg: Law Reform Commission, November 2008).

[46]  C.C.S.M. c. I85. 

[47] Supra note 45 at 4-6.

[48] 372 Ark. 103 (Sup. Ct. 2008) [Finley]. 

[49] 930 A.2d 1180 (N.H. Sup. Ct. 2007) [Khabbaz]. 

[50] Supra note 45 at 6.

[51] Finley v. Astrue, supra and Khabbaz.v. Commissioner, social Security Administration, supra.  But in Gillett-Netting v. Barnhard, 371 F. 3d 593 (9th cuir.2004) social security benefits were granted in Arizona.

[52] 760 N.E.2d 257 (Mass. Sup. Jud. Ct. 2002) [Woodward]. 

[53] At the outset, the court said that there was no principled reason that its conclusions would not apply equally to posthumously conceived children born from a deceased female’s gametes.

[54] M.G.L. c. 190 § 8. 

[55] Supra note 51.

[56] NSW Law Reform Commission, Uniform succession laws:  intestacy (report #116, April 2007).

[57] Supra note 45 at 12.  (Flor. Stat. §742.17(4))

[58] Ibid. at 14 (Cal. Prob. Code § 249.5)

[59] Ibid. at 25.

[60] CCSM c. D37

[61] Supra note 45 at 31-32.

Next Annual Meeting

2018 Conference (Centennial)

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August 12 - 16, 2018