Modernizing Family Law On Parentage
March 27, 2024
BY Alison Wilkinson and Zara Suleman
We are Family
There are so many paths to building families and becoming parents.
How we create families and become parents is different for each and every one of us.
There is no one universal story. There are many stories and lived experiences on this journey and so many more of them involve creating families with assisted reproduction.
In fact, one in six Canadians experience a need for assisted reproduction.1 Science has expanded the services available through fertility treatments. Many more people consider and decide to use sperm donors, egg donors, embryo donation, in vitro fertilization (IVF) and surrogacy. We have even heard the recent Provincial Budget announcement in British Columbia to allow for the medical coverage expenses for one cycle of IVF for those eligible.
While it is an exciting time of so much change, the law and legal institutions need time to transform and modernize the laws for legal parentage.
What is parentage?
Determining who a child’s parents are (or parentage) is an important part of family law. It is the foundation of many aspects of a child’s identity, such as family name and relationships. It can also impact roles and decision-making rights people will have with and for each other. Parentage can also determine important legal rights and responsibilities, such as a child’s inheritance rights.
A decade ago, when the Family Law Act was introduced in BC, the legislation created a framework for parentage which represented a significant improvement and introduced new protections. For example, according to Barbara Findlay KC, a Vancouver lawyer and human rights advocate who specializes in legal services to support people creating families through assisted human reproduction, British Columbia has the most progressive law in Canada when it comes to recognizing parentage of a surrogate baby.
British Columbia has also advanced legal rights and entitlements for multi-parent families.
But in the ten years since the Family Law Act was enacted, it has become apparent that there is more work to be done.
Why reform the law?
Lawyers practicing at the nexus of family law and fertility law are increasingly faced with scenarios and clients who are left out of the current definitions of parentage.
Medical advancements and expanding notions of relationships, beyond monogamous units, have created many options to reimagine family and baby-making. You will know from looking around your own community that relationships and families come in all forms.
Unfortunately, family law and fertility law, as most laws, are always in catch up mode and are often left trying to respond to the real lived experiences of people who just want to make sure they are protected and have secure legal entitlements.
When the law doesn’t recognize the realities of the community, it creates more hurdles, expenses, and time for people who don’t fall within dominant relationship and family-making structures. These create significant concerns about access to justice, fairness, substantive equality, and representation.
What is being done to create change?
Several Canadian provinces have undergone legal reform in this area in the past few years. Interestingly, these provinces have taken diverse approaches in answering the above concerns. For example, Ontario has opened the door to four parents regardless of the method of conception.2 Manitoba, on the other hand, explicitly limited the number to two.3
Family law and fertility law will need to be proactive to meet the future challenges of assisted human reproduction and to legally recognize the intention of people wanting more autonomy over their relationship and family making options.
Some of the real-world questions and challenges include:
● I want to have a child by an anonymous sperm donor, but I’m married and I don’t want my spouse to be a parent.
● I have two partners and we all want to have a child together.
● I plan on having sex with my ex-boyfriend to have a baby — but he’ll be a donor and I’ll be the only legal parent — that’s okay, right?
● My partner is going to have a child with someone else, but I don’t want to be a parent.
● I’m going to be the birth dad, how will I be listed on the birth registration?
● I’m going to be a donor for my friend, I just need to make sure I can have regular contact with the child.
● My partner and I want our surrogate to raise our child with us.
● My sister will be my surrogate, so we don’t need an agreement right?
These are just some of the questions and factors being considered by BC Law Institute (“BCLI”) in their current law reform project focused on defining parentage under Part 3 of the Family Law Act in order to best represent all people, all relationships, and all families.
“The proposed changes will take into account families who have been excluded: trans and non-binary folk, folks with a poly or multiple parent family, and others. This will create a desperately-needed sea-change in how we think about ‘family’.”
– barbara findlay, KC, BCLI Parentage Law reform Project Committee
For more information about the BCLI project and changes proposed click here.
Author Bios:
Alison Wilkinson
Alison Wilkinson is a staff lawyer for the British Columbia Law Institute and the Canadian Centre for Elder Law. Alison obtained her B.A. in Psychology from the University of Victoria, and her J.D. from the University of British Columbia.
Zara Suleman, KC
Zara Suleman is the Chair of the BC Law Institute Parentage Law reform Project Committee. She is also the founder of Suleman Family Law where she practices family law and fertility law in British Columbia. She is a certified family law mediator and collaborative law practitioner. Zara is also an adjunct instructor for family law at the University of Victoria law school, on the board of the Law Foundation of BC, and on the advisory for the FREDA Centre for Research on Violence Against Women and Children. Prior to law school Zara was a frontline community advocate for over a decade. She has been working on issues of violence against women and children for over 30 years, and has also presented and written extensively on family law issues, trauma informed practice, and anti-racism/critical race theory issues.
1 https://cfas.ca/_Library/Infertility_Awareness_Week/CFAS_Infertility_Awareness_2022_Final_Eng.pdf
2 Children’s Law Reform Act, RSO 1990, c C12, s 9 (2).
3 The Family Law Act, SM 2022, c 15, Schedule A, CCSM c F20, s 16 (1) (4).
