Today’s era of new and exciting Vancouver assisted reproductive technology is resulting in countless couples having the opportunity to have children, whom otherwise were unable to do so. However, those same assisted reproductive technologies that are bringing so much joy (and perhaps sleeplessness) to new parents are causing distress of a different sort for family law law clients when a separation occurs and the frozen sperm, embryos and children born of surrogacy are then fought over. Contact us toll free across BC at 1 877 602 9900 if you have questions related to the complexities of assisted reproduction technology and ask to speak to Lorne MacLean, Q.C. Give us a call if you have questions you need answered.
Our new Family Law Act provides clear rules for who is a parent in the modern age of assisted reproduction, sperm donors and surrogacy agreements. We enclose a summary of the new laws later on in this article but first we want to discuss a recent case involving frozen sperm straws that were purchased from a donor by a lesbian couple for later use during their relationship and then a case involving a dispute over frozen embryos. The law on this new area is fascinating and points out the critical need for parties to get top notch family law representation.
SPERM STRAWS
Recently, the British Columbia Supreme Court released the decision of J.C.M. v. A.N.A. 2012 BCSC 584 in which sperm straws (vials of sperms which are stored in such a manner that they may be used for reproductive purposes at some point in the future) were held to be joint property for the purposes of matrimonial property division. In this case, two women in a romantic relationship jointly purchased vials of sperm from a single third party donor clinic for the purposes of conceiving. Each woman had a child using these sperm straws, leaving the remaining straws in storage. After the relationship broke down, a question arose as to whether the extra sperm straws should be split between the parties or destroyed in their entirety. In her reasons, Russell J. noted that balancing the right to procreate with the right to avoid procreation did not need to be factored in this case. A.N.A. would not be the biological parent of any child conceived by J.C.M. using the sperms straws and vice versa. In essence, one party’s right to avoid procreation was not being infringed by treating the sperms straws as property and dividing them between the women.
FROZEN EMBRYOS
But what happens if we were not talking about sperm straws but rather frozen embryos with the real potential for human life. A court in Alberta had to wrestle with this question in the 2005 decision of C.C. v. A.W. 2005 ABQB 290, in which Mr. A.W., the “father” of the embryos, refused to consent to their release to Ms. C.C., the “mother” of the embryos, on the basis that she would use them to have another child. The court in reaching its decision took special note that Mr. A.W. and Ms. C.C. were no longer in a romantic relationship when he gave her the “gift” of his sperm to allow her to conceive children. Mr. A.W. should have been aware, in the court’s opinion, that he fully knew that the embryos could be used to conceive children when Ms. C.C. so desired. As such, the fertilized embryos remained Ms. C.C.’s property, much to Mr. A.W.’s dismay.
However, had Mr. A.W. and Ms. C.C. been married when the Mr. A.W. gave his gift of his sperm, would that have changed the court’s determination? In that scenario, Mr. A.W. could have “gifted” his sperm under the expectation that the couple would have had children while happily married – If the marriage were to break down, should Ms. C.C. still be allowed to conceive children with those embryos? It is a question that has not come before the British Columbia courts as of yet but will ultimately raise the question of whether the right to procreate is outweighed by one’s right to remain childless. Likely, the intention of the parties at the time of insemination will be key to the court’s determination. Did the parties enter into an agreement regarding what would happen to the embryos if the marriage broke down? What are the parties’ future intentions for the embryos? These factors could determinative of what happens in a case such as this. It’s best to seek legal advice from qualified family lawyers at MacLean Family Law Group before entering into any agreement concerning the future of your frozen embryos.
NEW BC PARENTAGE LAWS FOR ASSISTED REPRODUCTION-DONORS AND SURROGATES
What happens if a dispute arises between a donor and the persons who purchased the genetic material? Under our new Family Law Act the rules are:
- Section 24 provides a general rule that, if assisted reproduction is used, a donor of genetic material is not a parent of a child conceived and born using the donor’s genetic material.
- A donor cannot be declared a parent by virtue of the donation, even though there is a genetic link between the child and the donor.
- There is an exception to the general rule that a donor is not a parent if the donor and the people who would be the child’s parents (i.e., birth mother and her partner) agree before the child’s conception that all three will be the parents of the resulting child. There have been a number of recent cases where unpaid good samaritans who had a friendship with the birth mother and who assisted with conception later make claims for custody or guardianship. This person stands in a different class than an unidentified sperm donor.
What happens if a surrogate mother is involved and a dispute arises between the mother carrying the child and the couple who provided their fertilized egg?
- a surrogacy arrangement is an arrangement where a person or couple who intend to be parents enter into an arrangement with a woman, who does not intend to be a parent, under which the woman agrees to give birth to a child conceived through assisted reproduction with the intention of relinquishing the child to the intended parents after the child’s birth.
- If the surrogacy agreement is in writing and otherwise complies with section 29 and is carried out according to its terms, the intended parents are the child’s legal parents.
- If there is a surrogacy agreement, but the surrogate does not consent to surrender the child after the child’s birth, the agreement is not sufficient to require her to relinquish the child. The agreement can only be used as evidence of the parties’ intention with regards to parentage where, for example, a declaration for parentage is sought from the court in the matter.
This area of law is developing and changing rapidly and you need proper legal advice in this area before entering into this assisted reproduction area. Call any of our top rated lawyers if you need help now at any of our offices in Vancouver, Surrey, Kelowna and Fort St John BC.
