The committee considered whether an agreement should be a required part of the legislation, noting that Ontario and Saskatchewan have existing legislation that calls for a preconception written agreement in these circumstances. Preconception agreements are also a requirement of BC’s Family Law Act, which in section 30 contains enabling legislation for multiple parents of children conceived by assisted reproduction.

The committee began its consideration of this issue by discussing whether the circumstances of conception by sexual intercourse differ from conception by assisted reproduction in any ways that would call for a different approach to legislation. In particular, the committee’s attention focused on the timing of the agreement. Should a parentage agreement providing for more than two parents for a child conceived by sexual intercourse be required pre-birth—as opposed to preconception? Would this timing provide some flexibility that would better address the realities of forming a multiple-parent family when a child is conceived by sexual intercourse? Or does providing for a different timing rule than the one used in section 30 for children conceived by assisted reproduction create the prospect of problems in practice?

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.

The post Parentage agreements the focus of April 2022 parentage committee meeting first appeared on British Columbia Law Institute.

The committee completed its examination of a provision in the American Uniform Parentage Act 2017 (PDF) that sets out a court-based process to deny parentage to the perpetrator of a sexual assault that results in the birth of a child.

The committee also began its consideration of the issue of whether a child conceived by sexual intercourse may have more than two legal parents. Currently, part 3 of the Family Law Act doesn’t allow this. This rule for children conceived by sexual intercourse stands in contrast to part 3’s rule for children conceived by assisted reproduction, which doesn’t limit a child to two legal parents. In addition, BC’s supreme court has ruled in a recent case that its parens patriae jurisdiction permits it to declare that a child conceived by sexual intercourse may have more than two parents. Finally, it also differs from legislation in Ontario and Saskatchewan, both of which permit multiple parents regardless of the method of the child’s conception. The committee considered whether part 3 should be amended and, if it should be, what features that amendment should contain.

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.

The post Parentage committee considers legislation allowing multiple parents for children conceived by sexual intercourse first appeared on British Columbia Law Institute.

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.

The post Parentage Law Reform Project Committee begins its review parentage rules applying when assisted reproduction isn’t used first appeared on British Columbia Law Institute.