Parentage committee discusses parentage of posthumously conceived children
December 15, 2022
BY Sara Pon
In November, BCLI’s Parentage Law Reform Project Committee started discussing the topic of posthumous conception. Posthumous conception occurs when a child is conceived using assisted reproduction after one of their parents has died. This can occur either through a person’s sperm or eggs being removed from their body after death, or using sperm, eggs, or embryos which were previously banked prior to the person’s death.
The legal framework for posthumous conception spans three pieces of legislation – the federal Assisted Human Reproduction Act [AHRA], and BC’s Family Law Act and Wills, Estates and Succession Act. At the November meeting, the committee focused on two issues relating to who can be named a parent for a posthumously conceived child under section 28 of the Family Law Act – the requirements for a genetic connection between parent and child, and the requirement for a spousal relationship between parents.
First, the committee examined whether section 28 of the Family Law Act should continue to require a genetic connection between the deceased person and the posthumously conceived child for the deceased person to be named a parent. Currently, section 28 requires that the deceased person provided the sperm, eggs, or embryos for their own reproductive use to be named the parent. Ontario and Saskatchewan’s legislation do not require a genetic connection between the deceased person and the child. See section 12 of Ontario’s Children’s Law Reform Act and section 63 of Saskatchewan’s Children’s Law Act, 2022.
The committee’s discussion focused on the downstream effects of removing the genetic connection requirement. Of particular concern was the implications for inheritance. The committee also discussed what type of consent should be required showing the deceased person consented to being a parent to a posthumously conceived child.
Second, the committee examined whether section 28 of the Family Law Act should continue to require a spousal relationship between the parents of a posthumously conceived child for the deceased person to be named a parent. Currently, section 28 requires that the deceased person’s sperm, eggs, or embryos are used by a person to whom the deceased person was married or in a marriage-like relationship at the time of death. The two people who can be named parents are the deceased person and their spouse. Currently, all Canadian jurisdictions with legislation on parentage and posthumous conception require a spousal relationship.
The committee discussed the implications for removing the spousal relationship requirement in light of the provisions in the Assisted Human Reproduction Act. The AHRA governs what consents are required for any type of assisted reproduction, including posthumous conception. There is a question of whether the AHRA requires a spousal relationship for use of the deceased person’s reproductive material to conceive a child after death.
At the next committee meeting this December, the committee will continue its discussion of parentage for a posthumously conceived child, and discuss issues relating to posthumously conceived children inheriting from a deceased relative’s estate under BC’s Wills, Estates and Succession Act.
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.