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.

The post Parentage committee discusses inheritance and parentage for posthumously conceived children first appeared on British Columbia Law Institute.

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.

The post Parentage committee discusses parentage of posthumously conceived children first appeared on British Columbia Law Institute.