Today our Vancouver Surrogacy Fertility lawyers answer the question of: Who can be a parent? Donor Agreements, Surrogacy Agreements and Section 31 of the Family Law Act.
In Cabianca v. British Columbia, 2019 BCSC 2010, the Court explored how parentage is to be decided for births resulting from reproductive technologies, under section 31 of the Family Law Act. MacLean Law Vancouver Surrogacy Fertility lawyers deal with contracts and disputes over parentage. Our firm was involved in BC’s first frozen embryo case and we successfully protected frozen embryos from destruction. If you are involved in litigation related to fertility law reach out to Lorne MacLean, QC and Gurdeep Khosa.
In today’s blog, Gurdeep Khosa explores how 3 parents were found to all be parent’s under our Family Law Act despite a technical deficiency in a surrogacy contract. Vancouver Surrogacy Fertility lawyers act across Canada. Read more about us.
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Echo (“E”) and Nana (“N”) have been living in a same-sex relationship since 2010, Marc (“M”) was a close friend of E and N and provided them with semen donations for their two children.
The parties’ Donor Agreement provided that M, E, and N would be listed as parents on Registration of Birth. After the birth of the first child, the Registrar was unable to register the birth identifying M, E, and N as parents because the Agreement was not signed before the conception of the child. After birth of a second child, E and N registered online as parents of child because online registration only allowed for two parents. Petitioners brought an application for declarations that all three of M, E and N were parents of the children.
The parties’ written semen donation agreement provided:
The purpose of this Agreement is to enable Echo and Nana to have one or more Offspring by using Echo’s ova and Marc’s semen.
Marc donated his semen to Echo for her use in the conception and parenting of a child.
Marc desires and intends to have a parental relationship with any Offspring born of the donated semen.
They [Echo and Nana] accept all parental rights and responsibilities for the Offspring thus conceived and born.
The parties intend that:
- Echo and Nana shall be the legal mothers of any Offspring born pursuant to their Agreement.
- Marc shall be the legal father of any Offspring born pursuant to this Agreement.
- Echo and Nana and Marc intend to enter into a Parenting Agreement for the Offspring for parenting arrangements for Marc and the financial responsibilities Marc may undertake in regard to the Offspring.
- Echo and Nana shall be conclusively presumed to be the legal parents of any Offspring born from the Procedure conceived pursuant to this Agreement.
Echo and Nana shall enter their names as a Parent on the Registration of Birth of any Offspring contemplated by this Agreement.
Marc shall enter his name as a Parent on the Registration of Birth of any Offspring born from the Procedure contemplated by this Agreement.
- Echo and Nana shall take parental responsibility and custody of any Offspring conceived pursuant to this Agreement…
- The parties shall enter into a Parenting Agreement as referred to in Recital G(3) as soon as practicable.
On February 27, 2018 the petitioners entered into a further semen donation agreement (the “Pre-Conception Agreement”) for Nana to become pregnant. The terms of the Pre-Conception Agreement are almost identical to the Donor Agreement with the exception of naming Nana in Recital A(2).
The petitioners also entered into a Parenting Agreement dated February 27, 2018 (the “Parenting Agreement”). The Parenting Agreement contains the terms for parenting time, guardianship roles, and financial support for the children.
The Registrar was unable to register the birth identifying Marc, Echo, and Nana as parents of Luca because the written Donor Agreement was not signed prior to conception as required by s. 30 of the FLA. On June 16, 2018 Echo and Nana registered Luca’s birth with the Registrar identifying themselves as Luca’s parents.
In April 2018 Nana became pregnant as a result of assisted reproduction pursuant to the Pre-Conception Agreement.
On November 27, 2018 the petitioners entered into an Addendum Agreement to resolve the ambiguities arising from the Donor Agreement, the Pre-Conception Agreement, and the Parenting Agreement. The Addendum Agreement provides, inter alia:
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Regardless of any inconsistency in the Agreements, the Petitioners intended that Marc would be a parent and identified as such on any child’s birth registration.
- The Petitioners prepared the Agreements without legal advice, and did not appreciate there may be ambiguities about their intentions.
- The Petitioners agreed and intended each that would be identified as parents on the birth registration of any child.
- Luna was born on [Date Omitted] Marc is her biological father and Nana is her biological mother. The petitioners intended that they all be listed as parents on Luna’s birth registration. However, on January 24, 2019 Nana and Echo registered themselves as the parents of Luna because the online registration procedure only allows for two parents on the birth registration. They were under the mistaken impression that by separately submitting the Birth Registration Summary and other supporting documents to the Vital Statistics Agency, they could subsequently request the Registrar to amend the birth registration of Luna to add Marc as a parent.
- That same day, Marc emailed the Vital Statistics Agency regarding Luna’s birth registration. On February 14, 2019, the Vital Statistics Agency advised Marc that Luna’s birth was already registered with Nana and Echo as parents. The Registrar did not exercise its discretion pursuant to s. 29 of the Vital Statistics Actto register Marc as a parent.
Section 30 of Family Law Act (FLA) articulates how parentage is to be determined in the context of assisted reproduction if parties contemplated another arrangement for parenting.
Section 30(1)((c)(ii) provided that parties to agreement would be parents of child.
Section 30(3) provided that agreement was revoked if not signed before child was conceived.
Surrogacy Contact Errors Can Be Rectified
However, s. 31(3) of FLA provides that, to the extent possible, the order must give effect to rules respecting the determination of parentage. The Court ruled that wording of s. 31(3) was broad enough to grant court jurisdiction to correct mistakes that resulted in non-compliance with requirements in s. 30. It was contrary to the first child’s best interests, and to liberal and purposive interpretation of FLA, to hold parties to a high standard in terms of drafting agreements. The Court stated that the first child’s birth registration should reflect the parents’ intentions. M was added as a parent on the first child’s birth registration.
Due to the pre-conception agreement, M, E and N fell within s. 30 of FLA and M was entitled to be registered on the second child’s birth registration. M was not registered because the online registration process only allowed for two parents. The Registrar had authority under Vital Statistics Act to correct technical errors on birth registration. The Court ruled that pursuant to s. 31 of FLA, the declaration was granted that M was parent of the second child.
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