Parentage Committee Completes Its Review Of Surrogacy Arrangements
October 26, 2022
BY Kevin Zakreski
At its latest committee meeting—held earlier this month—BCLI’s Parentage Law Reform Project Committee tackled a pair of emerging issues concerning the law of parentage and surrogacy arrangements. These issues may point to some gaps in part 3 of the Family Law Act that may need to be filled with new legislation.
First, the committee examined so-called traditional surrogacies. These are surrogacy arrangements in which the surrogate is linked both genetically and gestationally to the child. In contrast, in a gestational surrogacy the link between surrogate and child is only gestational. In this case, an intended parent has donated ova to conceive the child. Traditional surrogacies appear to be quite rare in British Columbia.
Part 3 doesn’t distinguish between gestational and traditional surrogacies. It only speaks of surrogacy arrangements, which encompass both types. But part 3 does limit the scope of its surrogacy provision to children “born as a result of assisted reproduction.” At an earlier committee meeting, the committee considered whether a similar limitation should continue to apply to sperm donation, or whether British Columbia should follow the lead of Ontario and Saskatchewan and enable sperm donation by sexual intercourse. At this meeting, the committee considered whether a parallel case could be made for enabling surrogacy arrangements to be effected by sexual intercourse.
The second issue concerns decision-making authority for the child, something which several provinces address for the period between birth and what BC’s Family Law Act describes as the “surrogate giv[ing] written consent to surrender the child to an intended parent or the intended parents.” BC’s legislation is silent on this issue. The committee considered whether BC should follow the lead of Ontario, Saskatchewan, and Manitoba and enact legislation addressing decision-making authority for the child during this brief period and, if so, how that legislation should be framed.
At its next committee meeting, which is coming up at the end of October, the committee will be moving on to consider new topics concerning parentage.
The goal of these discussions is to develop tentative recommendations to reform part 3 for a public consultation to be held later in the life of the project.