Parentage Law Reform Project Committee begins its review parentage rules applying when assisted reproduction isn’t used
January 28, 2022
BY Kevin Zakreski
As a judge recently observed, “[p]art 3 of the FLA contains two different regimes for parentage: one regime that applies to children conceived through sexual intercourse, and one that applies to children conceived through assisted reproduction.”
The committee began its review by asking whether this strict separation is necessary in all cases. Its discussion focused on legislation in force in Ontario and Saskatchewan, which creates a legal framework for sperm donation by sexual intercourse. So long as the rules set out in this provision (which focus on entering into an agreement before conception) are met, parentage is determined in a manner similar to when sperm donation is used as a part of assisted reproduction. This means that the sperm donor is considered not to be the child’s parent. (The parents are the birth parent and, if applicable and certain conditions are met, that person’s spouse.) The committee considered whether part 3 should be amended to have BC adopt similar legislation.
This discussion led to a broader discussion of the conceptual framework for these “two different regimes for parentage.” For children conceived by sexual intercourse, genetics determines parentage. But for children conceived by assisted reproduction, intention (not genetics) is the underlying principle for parentage. Some legal academics have argued that intention should become the single criterion for establishing parentage in all cases. The committee discussed this idea, noting that it hasn’t yet been incorporated into parentage legislation anywhere in Canada.
At its next meeting, the committee plans to continue its discussion of the rules governing parentage when assisted reproduction isn’t used by taking a close look at the presumptions set out in section 26 of the Family Law 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.