One of the topics covered in the paper is parentage of children, which received its own dedicated chapter (PDF). BCLI participated in Phase 2 of the Family Law Act Modernization Project through its Parentage Law Reform Project. This project culminated in recommendations for legislative reform, which are set out in the Report on Parentage: A Review of Part 3 of the Family Law Act. As the policy intentions paper notes, “The Ministry intends to recommend policy reforms for [parentage] along the same timeline as the other Phase 2 work”.

The ministry gave an indication of this timeline in a news release that accompanied the policy intentions paper. “The proposed policy changes will inform amendments to the [Family Law Act]”, the news release said, “which will be introduced to the legislature for consideration as soon as is feasible”.

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The Ministry of Attorney General for BC has just announced a public-engagement program for phase two of its project to modernize the Family Law Act. This program gives the public an opportunity to share its thoughts on ministry proposals for reform concerning the following topics:

• guardianship of children, parenting arrangements, and contact
• relocation of a child
• child-centred decision making
• children’s views and parenting assessments and reports
• family violence and protection orders

To support the public-engagement program, the ministry has published a discussion paper (PDF), an executive summary (PDF), and four online surveys:

• family violence and protection orders
• parenting assessment and views of the child reports
• time with and care of children
• Indigenous perspectives on family law

This public engagement is part of an ongoing ministry project “to update parts of the Family Law Act and make it work better for families.” The ministry’s goal is “[t]o make the Family Law Act clearer and more responsive to families’ needs.” Public engagement is open until 31 March 2024.

Update on BCLI parentage project: Consultation paper coming soon

BCLI is carrying out its own project in conjunction with the ministry’s phase-two project. This project is reviewing the law of parentage, as set out in part 3 of the Family Law Act. BCLI is currently preparing its own consultation paper, which will be the centrepiece of its planned public consultation on parentage. Watch the BCLI website or sign up for our newsletter to receive notice when the consultation paper is published.

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BC doesn’t have provisions on information about donors in its parentage legislation under part 3 of the Family Law Act. But access to information about donors is an issue that has risen in prominence as more and more children are born from assisted reproduction. The committee decided that donor anonymity was sufficiently connected to parentage as to merit high-level consideration in this project.

The federal Assisted Human Reproduction Act was originally enacted with provisions to manage the collection of information about sperm, egg, and embryo donors. It also managed disclosure to donor-conceived people, which was only allowed with the donor’s consent. But the Supreme Court of Canada held that this legislation had impermissibly strayed into areas that Canada’s constitution assigns to the provinces to regulate, so it struck these provisions of Assisted Human Reproduction Act down. As a result, it became clear that any legislation on donor information in Canada would have to be enacted at the provincial level.

Most of Canada’s provinces and territories (including BC) have declined to exercise their authority to legislate on this topic. As a result, there’s something of a vacuum on donor information. This vacuum has mainly been filled by general legislation on personal information (such as BC’s Freedom of Information and Protection of Privacy Act and Personal Information Protection Act). These acts place an emphasis on personal privacy and generally require consent to the disclosure of personal information. So, in effect, by choosing not to legislate on information about donors, BC has passively adopted donor anonymity as its guiding principle in this area.

This approach is increasingly seen to be out of step with trends in legislation and social trends. According to a survey done in 2016 (PDF), 18 jurisdictions worldwide (including the state of Washington) have created legal frameworks that allow donor-conceived people to have access to identifying information about their donors. Social attitudes have also developed, dissipating much of the shame that surrounded infertility and assisted human reproduction and emphasizing the benefits that accrue to donor-conceived people from knowledge about their genetic origins. A similar change in social attitudes a generation ago led to a change in BC’s Adoption Act, enshrining openness in adoptions as the standard. Finally, technological advances—such as the widespread availability of affordable, direct-to-consumer DNA testing—has started to erode donor anonymity in practice.

The committee also considered reasons supporting donor anonymity in principle. It is a system that fully respects donors’ privacy interests. It may also respect the choices of intended parents in creating their families and avoid the perils of genetic essentialism. Finally, there were practical considerations, such as the costs of collecting and storing donor information and the risk that ending or limiting donor anonymity might reduce the number of people willing to be donors.

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.

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First, the committee examined whether section 28 of the Family Law Act should continue to limit the maximum number of parents for a posthumously conceived child to two. Currently, section 28 states that the child’s parents are the deceased person and their spouse. Ontario, Saskatchewan, and Prince Edward Island also limit the number of parents to two. See section 12 of Ontario’s Children’s Law Reform Act, section 63 of Saskatchewan’s Children’s Law Act, 2022, and section 22 of PEI’s Children’s Law Act. The committee’s discussion focused on intentions versus biological models of parentage, what procedural requirements may be needed, and crossover with the federal Assisted Human Reproduction Act.

Second, the committee examined whether section 8.1 of the Wills, Estates and Succession Act should continue to require a genetic connection between the deceased person and the posthumously conceived child as a basis for inheritance. Currently, section 8.1 requires that the deceased person’s reproductive material be used to conceive a child through assisted reproduction after their death. Ontario’s Succession Law Reform Act does not require a genetic connection between the deceased person and the posthumously conceived child – there is no requirement that the reproductive material come from the deceased person (see sections 47(10) and 1.1). While Saskatchewan has family law legislation addressing parentage for posthumously conceived children, Saskatchewan’s Intestate Succession Act, 2019 does not address inheritance for posthumously conceived children. The committee’s discussion focused on the implications of removing the genetic connection requirement for inheritance.

Third, the committee examined whether section 8.1 of the Wills, Estates and Succession Act should continue to require a spousal relationship between the parents as a basis for inheritance. Currently, section 8.1 requires that the spouse give notice that they may use the deceased person’s reproductive material to conceive a child through assisted reproduction. The deceased and their spouse must be married or in a marriage-like relationship at the time of death. Ontario’s Succession Law Reform Act also requires a spousal relationship between the posthumously conceived child’s parents as a basis for inheritance (see sections 47(10) and 1.1). California’s Probate Code is an example of a jurisdiction where there is no spousal relationship requirement – the deceased chooses a designated person to control their reproductive material (see §249.5). The committee’s discussion focused on the implications of removing the spousal relationship requirement for inheritance and the uncertainty this could potentially cause.

At the next committee meeting in January, the committee will be discussing donor-conceived children’s right to information about their biological origins.

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.

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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.

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