Current Uniform Acts

Assisted Human Reproduction Working Group Report 2009



IV. The Recommended Approach


[41]    The potential indicators for parentage are the act of birth, genetics and intention to parent.  The current law of parentage in most common law jurisdictions is based on biological presumptions.  Parentage begins with the act of birth: the birth mother is the legal parent of the child, and a man who shares a conjugal relationship with the birth mother is presumed to be the father. This approach to parentage does not always work well in the AHR context.  The result is to exclude some persons who have started families using AHR from acquiring automatic parental status by operation of law on the birth of a child.

[42]    The challenge in developing a scheme for determining parentage that accommodates both natural conception and AHR is to balance the aforementioned potential indicators of parentage in a way that best reflects the guiding principles. 

[43]    The recommended approach is:  to recognize the birth mother link, to equalize the natural and assisted conception models so that the two processes are treated the same as much as possible, and to consider the intentions of those who wish to parent.  In all instances, a court process remains for persons who are left out of the determination of parentage at birth but who seek to be named as parents after birth.

Parental status at birth:

1.  The birth mother is the child’s legal mother at the time of birth.

[44]    This applies whether or not the child is conceived using the birth mother’s egg or a donor’s egg.  This provides stability for the child and treats natural and assisted conception the same.  It complies with the requirement in Article 7(1) of the UN Convention that a child has a right to a name, nationality and to know his or her parents from birth.  This is also consistent with the treatment of mothers under existing Vital Statistics legislation for AHR and natural conception.

2.  Unless a statutory provision (like a presumption) provides otherwise, the genetic father and the birth mother are the parents of a child.

[45]    Again this is consistent with existing law and the exceptions will be set out in the uniform Act to deal with donors in AHR process and surrogacy.

Changing Birth Mother Status:

3.  There are two means by which the birth mother can relinquish her parental status and another person can gain parental status: adoption and surrogacy.

[46]    The surrogacy approaches are outlined below.  The status of the birth mother is recognized because of the biological connection to the child.  In addition, there may be emotional attachments between the birth mother and the child.[27]

Presumption of the “other” parent:

4.  The parental status of the other parent will be presumed from that person’s conjugal relationship with the birth mother except in cases of surrogacy or unless the presumptions are rebutted.

[47]    This presumption applies whether or not there is a genetic link between the birth mother or the other parent and the child.  This approach provides stability for the child and equal treatment of natural and assisted conception.  Since the child is not conceived through natural conception, proof of lack of a genetic link between the presumed parent and the child will not rebut the presumption of parentage.  In order to rebut the presumption, the presumed parent will have to prove on the balance of probabilities that he or she did not consent, or prior to conception withdrew consent, to be the child’s parent.  Where the parent arguing to rebut the presumption provided the egg or sperm, it will be hard to establish that consent was lacking. 

[48]    This approach is similar to the law in Quebec[28] and in some Australian states.

[49]    This means that the birth mother and a person with whom she shares a conjugal relationship, whether of the same or opposite sex, should be able to jointly register the child’s birth with a Vital Statistics registry. With the presumptions in place, birth registration should be straight forward as the parents should not have to go to court to get declarations of parentage.  There may be a need for Vital Statistics legislation amendments to deal with the new rules on parentage.

5.  In cases of natural conception, the current presumptions of parentage continue to be available for fathers.

[50]    The presumptions can be rebutted by proving on the balance of probabilities that the presumed father is not the child’s father.  Currently, this is often done using DNA evidence to show that there is no genetic link between the presumed father and the child.

Court Role:

6.   When necessary, courts continue to be able to make declarations of parentage where contested.  In cases of multiple parents, if the persons follow the legislative requirements, a declaration of parentage will result except where contrary to public policy.

[51]    The courts can confirm or rebut a presumption of parentage in circumstances where a presumption is challenged or where the circumstances fall outside the presumption.  By clearly setting out expectations on what is required to be dealt with by the parties prior to conception, greater certainty can be attained in terms of parental status. 

Third Party Donors:

7.  In all cases, third party donors of genetic material have no parental rights or responsibilities unless there is an express legislative provision otherwise.

[52]    This is based on the fact that, generally, a third party donor does not intend to be the child’s parent.  The clarification of the role of donor is important to remove any barrier to altruistic donation and also to give certainty to the donor, the child and the “parents” as to the status and responsibilities of the donor at law.[29]  A donor can, of course, always voluntarily provide benefits to the child.

Surrogacy:

8. Surrogacy arrangements are not enforceable.
  • In all cases the surrogate will be recorded as the birth mother of the child and the surrogate’s consent to relinquish her parentage will have to be obtained after the child’s birth before the intended parents can be registered as the child’s parents.  If the surrogate consents to relinquish her parentage, no presumption would operate in favour of her spouse or conjugal partner because surrogacy is an exception to the presumptions rule.
  • Intended parents in situations of surrogacy will be required to obtain a court declaration to be recognized as the child’s legal parents.
[53]    The Working Group considers that it is not consistent with public policy or with the overarching responsibilities of the courts as parens patriae to allow surrogacy contracts to be enforceable.  Note the Jane Doe v. Alberta[30] case that references the inability of an agreement between the parties to bind the hands of the court.

[54]    The Working Group considered two options for determining the parentage of children born using surrogacy.  The majority of the Working Group recommends an approach based on a genetic link with at least one of the intended parents and intention to parent. 

[55]    Under this approach, parentage in surrogacy situations would be determined based on the provision of genetic material for the child’s conception by at least one of the intended parents. Legislation would allow the genetic parent and that parent’s spouse or conjugal partner to apply for a declaration of parentage.  If the surrogate mother, after the birth of the child, consents to the application, the court could make the declaration of parentage in favour of the genetic parent and the genetic parent’s spouse or conjugal partner.  Where the surrogate mother consents to the declaration, no presumption would operate in favour of her spouse or conjugal partner because surrogacy is an exception to the presumptions rule.  While the CCSO Working Group initially contemplated that jurisdictions could decide whether court overview or administrative process was needed, this Working Group suggests that a court declaration approach ensures certainty of process.  (A jurisdiction could choose to allow the transfer of parentage to occur administratively through a registration process rather than require a court application.)

[56]    An option considered, but not accepted, would allow surrogacy without a genetic link between at least one of the intended parents and the child.  The concern is that this approach could circumvent the public policy around adoption and create an inconsistent approach to protecting the best interests of the child.  While it could be argued that this approach can be distinguished from adoption based on the intent to parent being present prior to conception, this seems a narrow distinction.

[57]    In the US, practice with respect to the status of surrogate mothers varies by state and this lack of consistency has been criticized; it appears the American Bar Association is undertaking to draft model legislation to provide a legal framework to regulate surrogacy agencies.[31]  In the UK, genetic parents can apply for court declaration that they are the legal parents of a child born from surrogacy.[32]  The order must be sought within six months from birth.

Multiple Parents:

9.  While generally the child will have a maximum of two parents, in specific circumstances where:
  • there is an agreement among the parties prior to conception setting out their intention, declaring the genetic/biological link of at least one of the intended parents and the intent for each party to have parental status;
  • all parties have received legal advice before entering into the agreement; and
  • steps are taken to finalize the parental/child status within a set short time period after the child’s birth;
a court on application shall make a declaration of parental status based on the agreement, except where contrary to public policy.

[58]    In terms of multiple parent scenarios, these are most likely to occur in the situation of same-sex couples where there is a donor who wishes to be a legal parent and less frequently in the situation of a woman who carries and gives birth to a child for intended parents who wishes to continue to be legal parent even after releasing the child to the intended parents. 

[59]    The principle concern in these cases is to provide certainty and clarity (1) in the best interests of the child, (2) for the potential parents, (3) for the donor in terms of parentage, and (4) regarding legal responsibilities and status in dealing with estates, benefits, support, etc.  While such agreements should be recognized, some expectations should be placed on the parties as well some limitations.  For example, a court review and declaration is required to establish the change in parentage – as is proposed for surrogacy arrangements– to ensure that all the legal requirements were followed and to ensure that the arrangement is in the public interest.  For example, situations where an agreement proposes to limit or eliminate the responsibility of a proposed “parent” to provide child support would appear not to be in the public interest or in the child’s best interests. 

[60]    The proposed approach here is similar to the New Zealand Law Commission recommendation to allow a known donor to opt into parenthood[33] based on criteria and a two stage process involving consent prior to conception or birth with final approval upon proof that the donor is the genetic parent.  They recommend an approach in which the parties must take counselling on the issues raised by their planned family and complete sworn statements that the donor will be a genetic parent and legal parent.  There would also need to be evidence that all three parties have received independent legal advice.[34] The Victorian Law Reform Commission recommended a model similar to the New Zealand model.[35]

[61]    Millbank also endorses an opt-in approach for multiple parents.  She proposes a scheme to recognize the conjugal lesbian partner of the birth mother as parent.  The biological donor of sperm is not a father and with consent of the birth mother and co-mother, additional parents can be recognized.[36]

[62]    Kelly acknowledges that there will be situations where the egg donor or sperm donor will want to parent with the birth mother and her partner.  While the situations of multiple parents may be rare, she suggests that they be recognized if the intended parents have consented prior to conception to the donor (and the donor’s partner) playing a parental role, to allow for four parents.  However, she recommends the following caveats:  the legal recognition of a three or four parent family should only proceed if the two mother family is first recognized, as there is a concern that legal recognition of more than two parents could threaten the security of the lesbian family.  This is because the courts may treat donors in such a situation the same as other “fathers” without regard for how minimal their involvement in the child’s life may be.  She suggests that few lesbian families actually include a third active parent donor.  Thus, she also suggests that recognition of parents outside the two parent model should not interfere with any presumptions of parentage in favour of the non-biological lesbian co-parents. [37]

[63]    During development of the paper, the Working Group also received policy advice recommending an opt-in process based on a clear agreement prior to conception and then a final court application following the child’s birth.  There was also support from those consulted for a presumptive maximum two parent model with an option of additional parents.  It is the view of the Working Group that the approach proposed creates a practical presumption of a maximum of two parents, subject to clear criteria and a court declaration leading to recognition of additional parents.

Posthumous Issues:

Posthumous Recognition of Parentage:

10.  New parentage legislation should:
  • allow for posthumous recognition of birth mother, father or other parent where the DNA or other evidence establishes a genetic link or parentage status within the circumstances that fit with one of the presumptions of parentage in the Act; and
  • allow existing law to apply to determine whether such a child takes as entitled under intestacy, benefits, dependant’s relief, etc.
[64]    The current Uniform Act deals with the situation of a child claiming a relationship when the parent is deceased.  It is deficient in dealing only with parentage by fathers and not mothers and also does not recognize those born through AHR in circumstances that fit the presumptions in the Act.

[65]    What rights flow from this recognition would be governed generally by the existing law related to dependants, intestacy and wills.  In these cases, we assume the person exists and can either make a claim to benefits at the time of the other’s death or not.  This situation is different from posthumous conception where the creation of the child may occur after the donor’s death.

Posthumous Conception[38]:

11.  A child should be recognized as the child of a deceased person if the child is conceived using AHR after the death of the person if:
  • prior to death, the person clearly consents to the use of reproductive material to create posthumous children;
  • prior to death, the person clearly states whether or not such children are intended  to be treated as a child of the parent for the purposes of estate law or other benefits to ensure people order their affairs to provide certainty to living dependants’; and
  • steps are taken within a set time limit in order for the child to be entitled to estate or other benefits, subject to court extension in exceptional circumstances, or apportionment of funds for a future potential child.
[66]    While there may be valid social reasons for allowing a child born posthumously through AHR to be recognized as the child of a deceased parent, there is a need to consider how to ensure clarity and certainty for the child and any other children/dependants of the intended parent. 

[67]    A review of case law and existing statutes in other jurisdictions suggests that reproductive material should not be treated merely as property, that the donor’s intent on use of genetic material must be clear and that the circumstances of use must be appropriate.  It is argued that the social and moral issues raised by posthumous conception extend beyond the interests of the progenitors to considerations of the interests and welfare of children who result from the practice.

[68]    In most AHR situations in Canada, the deceased person will need to have consented to parent or to be a parent of the child, as required under current AHR Canada regulations.[39] 

[69]    Currently, Canadian law does not set any time limits within which banked genetic material must be used.  In the context of posthumous conception, this may have implications for estates and other entitlements when considering issues such as the rule against perpetuities which at common law strikes down interests that vest at a remote point in time.  Some jurisdictions have legislated to overtake this rule with modern legislation.[40]  (See the discussion under Intestacy for further consideration of how to deal with these implications.)

[70]    In the UK, posthumous parentage can be recognized, but posthumous children are denied benefits of being found a child of a deceased father.[41] This seems to ignore the stated intention of the parties and to not be in the best interests of the potential child.  Thus, it is recommended that the uniform Act provide for recognition of parental status and the ability to recognize this status in terms of consequences for estates, etc., with some limitations to ensure certainty and to protect the rights of living children/dependants’, as along as the process proposed is followed.  Some similarity is found in dependants’’ relief legislation, which sets time limits for a claim on the estate of the deceased.[42]

[71]    If a child is conceived outside the recognized process as proposed by this legislative scheme, then the parties still have an ability to deal with some matters in terms of voluntary agreements by providing directly for a future child through alternative means. 

Mistaken Implantation:

12.  The rules and presumptions of parentage would apply to these cases, but parentage could be changed on court order either of adoption or based on a declaration of parentage where determined to be in the best interests of the child.

[72]    While mistaken implantation is relatively rare, there is a concern that the status of the child, the parents and donors needs to be clarified to provide certainty for the child and other parties.  In its 2005 report, the New Zealand Law Commission recommended that the Status of Children Act be amended to provide for situations of mistaken implantation of an embryo, mistaken fertilization of an egg, or mistaken insemination.  It said that the court should be empowered to make parental orders in favour of, or to extinguish the legal parenthood of, any one or more of the group of adults with a proper interest in the parenthood of the resulting child, on the basis of the child’s best interests taking account of specified criteria.[43]

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