First, the committee examined so-called traditional surrogacies. These are surrogacy arrangements in which the surrogate is linked both genetically and gestationally to the child. In contrast, in a gestational surrogacy the link between surrogate and child is only gestational. In this case, an intended parent has donated ova to conceive the child. Traditional surrogacies appear to be quite rare in British Columbia.

Part 3 doesn’t distinguish between gestational and traditional surrogacies. It only speaks of surrogacy arrangements, which encompass both types. But part 3 does limit the scope of its surrogacy provision to children “born as a result of assisted reproduction.” At an earlier committee meeting, the committee considered whether a similar limitation should continue to apply to sperm donation, or whether British Columbia should follow the lead of Ontario and Saskatchewan and enable sperm donation by sexual intercourse. At this meeting, the committee considered whether a parallel case could be made for enabling surrogacy arrangements to be effected by sexual intercourse.

The second issue concerns decision-making authority for the child, something which several provinces address for the period between birth and what BC’s Family Law Act describes as the “surrogate giv[ing] written consent to surrender the child to an intended parent or the intended parents.” BC’s legislation is silent on this issue. The committee considered whether BC should follow the lead of Ontario, Saskatchewan, and Manitoba and enact legislation addressing decision-making authority for the child during this brief period and, if so, how that legislation should be framed.

At its next committee meeting, which is coming up at the end of October, the committee will be moving on to consider new topics concerning parentage.

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 Completes Its Review Of Surrogacy Arrangements first appeared on British Columbia Law Institute.

Summary of the case

The court’s overview at the start of its decision provides a good summary of the dispute at the heart of this case.

[2]        The Applicants are a same-sex couple. The Applicants and the Respondents, who are the child’s biological parents, initially agreed the Applicants would act as parents upon the birth of the Respondents’ child. Once the child was approximately four months’ old, the Respondents sought the return of their child to their care. The child, who is now approximately 17 months’ old, continues to be in the Applicants’ full-time care, subject to parenting-time being exercised by the Respondents.

[3]        As such, the Applicants have no biological connection to the child, namely, Isabelle . . . . They seek to become her legal parents, pursuant to s. 13 of the Children’s Law Reform Act, R.S.O. 1990 c. C.12. [This is the Ontario equivalent to section 31 of British Columbia’s Family Law Act, which empowers a court to make a declaration of parentage.]

[4]        If such a designation is not possible, and regardless of same, the Applicants seek to have primary residence of Isabelle and sole decision-making responsibility for her. They are agreeable to the Respondents having ongoing, gradual increased parenting-time with Isabelle, including overnights, as of July 15, 2022 (once Isabelle is 18 months’ old). It was proposed by the Applicants that the parenting schedule be reviewed in January 2024, once Isabelle reaches the age of three years’ old.

[5]        The Respondents oppose the Applicants’ court Application and seek to have their claims dismissed. They wish to have Isabelle immediately returned to their primary care and seek an order that they have sole decision-making responsibility for her. They are agreeable to the Applicants having contact with Isabelle a minimum of once per week, with the date and duration to be determined by the Respondents in accordance with Isabelle’s best interests.

Ontario legislation (like legislation in British Columbia) gives people the legal tools they need to effectively achieve the result the parties desired (when they “initially agreed the Applicants would act as parents upon the birth of the Respondents’ child”). The tragedy of this case was that the parties were unaware of these tools and embarked on their plan without proper legal advice, only consulting with a lawyer shortly before the child’s birth. By then, it was too late to meet the legislation’s requirements for an effective surrogacy arrangement.

The court’s ruling on parentage

At various points in the judgment, the court emphasized the importance of complying with the legislation:

[233]        I agree with counsel for the Respondents that we have a legislative framework in place for the placement of children through adoption and surrogacy for a reason. These legislative schemes offer a roadmap to all parties involved (biological parents, adopted parents, intended parents, surrogates) to ensure safeguards are met vis-à-vis all parties in the matter and ultimately for the safety, well-being and protection of children. Some of these safeguards include independent legal advice, specified counselling, home studies, pride training and the like.

[234]        The court and public policy should not condone a party having a child and simply handing them off like a football to a third party. This is not the intent of our legislation. There has to be some oversight as to whether the third party is an appropriate caregiver for the child and whether all parties involved understand their rights and obligations and the long-term repercussions of their actions. The issue of permanency for the child is also important, as the birth parent can hand over their child to a third party only to turn around at a later date demanding the return of the child. These situations could have devastating ramifications on the parties and dangerous consequences for the physical and emotional well-being and development of the child.

These considerations came to the fore in the court’s analysis of the applicants’ request for an order declaring parentage.

The court began by noting “[t]here is not a lot of existing case law on having more than two declared parents under s. 13 of the Children’s Law Reform Act.” The court decided it could distinguish this case from an earlier Ontario case because “this case does not involve an insemination or the specific pre-conception intent of gifting reproductive material.” As the court explained:

[294]        Although it was always the intention of the parties that the Applicants would be the intended parents to Isabelle, the evidence actually suggests it was the parties’ intention for the Respondents to not be legally recognized as Isabelle’s parents. There was never any intention to have all four parties be the legal parents for the child. Regardless, these discussions only took place after conception.

[295]        As I previously stated, I am not convinced that when [the respondents] set out to have sexual intercourse with one another they set out to conceive a child by donating or gifting their egg and sperm for the sole purpose of providing the Applicants with a child. In all of the communications I have read (and there are many), the mother never stated the conception was planned for this purpose. She actually refers to her pregnancy as an “oops” or accident. There were no communications I could find suggesting [the male respondent] set out to intentionally donate his sperm.

Finally, the court noted that “it was open to the legislature to require that the best interests of the child be considered with respect to any declaration of parentage, but it did not and chose to omit same.”

The court’s ruling on guardianship

In contrast to the court’s reasoning on parentage, the court noted that the best interests of the child governed its decision on guardianship: “I concur there is no presumption in favour of the biological parents or genetics when determining a parenting order for a child. The governing principle as per subsection 24(1) is best interests, having regard to the considerations outlined in 24(2) and the factors outlined in 24(3) of the [Children’s Law Reform Act]. The best interests standard is a child-centered approach.” And in this case, the court’s determination of the child’s best interests led it to rule in favor of the applicants:

[266]        Isabelle appears to have a secure attachment with the Applicants. There is a possibility that if she were to be placed with the Respondents, she could still form further secure attachments, which would not negatively affect her development. However, why would I do this? Why would I risk this child’s development when she is feeling loved, safe, nurtured and has a parental connection with the Applicants? Why would I now change the status quo when the Applicants have a history and a proven track record with the development of this child and have met all of her needs, and presumably will continue to do so? The fact that the Respondents are her biological parents and want her return is simply not enough. I must look at the totality of the evidence and the circumstances and be guided by the legislative factors to determine what is in this child’s best interests.

[267]        The fact that particular safeguards were not followed or adhered to is not enough to return this child to her biological parents. It is the here and the now and where we are today.

In the result, the court ordered that the applicants had “sole decision-making responsibility” for the child, whose primary residence was to be with the applicants, and granted specified parenting time and other specified rights to consultation and information to the respondents.

The post In “a case about everything the parties did wrong to achieve a particular goal,” Ontario court illustrates the differences between guardianship and parentage first appeared on British Columbia Law Institute.

Should conception by sexual intercourse be permitted for traditional surrogacy?

Section 29 of the Family Law Act governs surrogacy. Surrogacy is when a person carries a child for someone else. There are two kinds of surrogacy. The first is ‘traditional’ surrogacy. In this case, the surrogate carries the child, but also donates an egg (i.e., is genetically related to the child). The second is ‘gestational’ surrogacy. In this case, the surrogate carries the child but is not genetically related.

In BC, the legislation allows for both types of surrogacy if assisted conception is used. In this meeting, the Committee discussed whether the legislation should permit conception by sexual intercourse for traditional surrogacy.

A main point of concern was the vulnerable position of surrogates. Surrogacy may occur in situations where there is a power imbalance. Using sexual intercourse to conceive is significantly less expensive than paying for assisted conception through a clinic. For this reason, a surrogate may feel pressured by intended parents into using sexual intercourse to conceive.

The Committee also considered equal treatment. In provinces like Ontario, the legislation allows for sperm donation by sexual intercourse. The Committee discussed whether there is a reason to permit sperm donation by sexual intercourse but not egg donation.

Should part 3 of the Family Law Act require independent legal advice?

Next the Committee turned its attention to independent legal advice. Independent legal advice is when parties to a legal issue all speak to a separate lawyer. This is important to make sure that all parties understand their independent rights and obligations in a particular situation.

In part 3 of the Family Law Act, there are several groups who could potentially benefit from independent legal advice. In other provinces like Saskatchewan and Manitoba, independent legal advice is required for surrogates and intended parents. However, it is not required for other contractual situations like multiparent configurations or sperm donation by sexual intercourse.

The Committee considered whether donors, surrogates, intended parents, and sperm donors by sexual intercourse should obtain independent legal advice given their unique vulnerabilities. The Committee considered issues such as the time and cost associated with independent legal advice, as well as the likelihood that someone may not get legal advice and fail to meet the legislative requirement.

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 starts discussion on surrogacy and independent legal advice first appeared on British Columbia Law Institute.

Facts of the case

Jennings v Human Fertilisation and Embryology Authority, [2022] EWHC 1619 (Fam) concerned a husband’s application to the court for “a declaration that it is lawful for him to use an embryo created using his sperm and the eggs of his late wife . . . in treatment with a surrogate.” The court summarized the facts of the case as follows:

[7] Mr Jennings and Ms Choya had been in a loving and committed relationship since 2007. They married in 2009 and wanted to have a family of their own. They experienced difficulties in conceiving naturally, sought fertility advice and underwent three cycles of IVF treatment at the Hammersmith Hospital in 2013 and 2014 which were not successful. Ms Choya conceived naturally in 2015 and 2016 but both pregnancies ended in miscarriage due to ectopic pregnancy. Mr Jennings and Ms Choya underwent further cycles of IVF treatment, re-mortgaging their home to fund private treatment at CRGH [Centre for Reproductive and Genetic Health].

[8] Their final cycle of treatment was in late 2018. At that point they only had one embryo, so prior to the embryo transfer underwent two further batching cycles to acquire more embryos to enable them to have more than one child. Once they had two embryos in storage they proceeded with the single embryo transfer in November 2018. A positive pregnancy with twin girls was confirmed in November 2018. Ms Choya developed complications in her pregnancy at 18 weeks, which resulted in a uterine rupture, and she died on 25 February 2019. It is the remaining embryo that is the subject of this application.

Even though, “[a]s part of their fertility treatment Mr Jennings and Ms Choya completed a number of forms” (at para. 9), Ms. Choya never signed the prescribed form required for consent to use of an embryo for surrogacy. This was because the prescribed “form used at the material time did not provide any opportunity for a woman to consent to a partner-created embryo being used for her partner’s treatment if she dies” (at para. 13) and she was never offered the different prescribed form in use for this purpose (at para. 21). In contrast, her husband signed a prescribed form (intended for use only by men) that allowed him to check a “box to record Mr Jennings’ consent to their partner-created embryos being used in Ms Choya’s treatment in the event of Mr Jennings’ death” (at para. 15).

Arguments of the parties

So while Mr. Jennings conceded that “there is no written consent by Ms Choya” for use of the embryo in surrogacy, he argued before the court that the couple “were not given sufficient information or opportunity to give that written consent and, if they had been, the court can infer from all the evidence Ms Choya would have given it” (at para. 2).

The United Kingdom’s fertility-treatments regulator—the Human Fertilisation and Embryology Authority—was served with the application as an interested party. It “oppose[d] the declaration sought on the basis that there was not a valid written consent by Ms Choya at the relevant time to use the remaining embryo in the way sought by the declaration in the event of her death. The statutory scheme requires such consent to be in writing and the HFEA submit Ms Choya had sufficient information and opportunity to give that written consent” (at para. 5).

The court’s decision

The court began by stating “the issue between the parties,” which “relates to the requirement that consent be recorded in writing and signed by the person giving it” (at para. 31). In brief, the court’s approach to resolving this issue involved “acknowledg[ing that] the issue of consent is the cornerstone of the statutory scheme and that the statutory scheme requires such consent to be in writing,” but “that cannot, in my judgment, be considered in a vacuum. It is necessary to consider the circumstances in which such consent is considered, the information that was available and what opportunity was given for that consent to be given” (at para. 82).

The court emphasized two considerations from these surrounding circumstances:

• the regulator’s prescribed forms treated men and women differently and the form used for women wasn’t clear on this issue (“[i]n my judgment, whilst it is right the WT [= women’s consent to treatment and storage (IVF and ICSI)] form does give some prompts about what a woman should do about providing consent to posthumous use by her partner of a partner-created embryo, they are far from clear”—at para 88); and
• there was ample evidence made available to the court that Ms. Choya would have provided written consent to posthumous use of the embryo for birth by a surrogate if she had been given that option. (“Turning to the issue of Ms Choya’s consent I am satisfied that, in the circumstances of this case, the court can infer from all the available evidence that Ms Choya would have consented to Mr Jennings being able to use their partner-created embryo in treatment with a surrogate in the event of her death. This is being considered in the context where, in my judgment, she had not been given relevant information and/or a sufficient opportunity to discuss it with the clinic”—at para. 92.)

In deciding to grant Mr. Jennings the declaration he requested, the court concluded (at para. 101):

Consent is a critical issue within the statutory scheme but what is important is to consider the role and purpose of consent in the statutory scheme, which is to ensure that gametes and embryos are used in accordance with the relevant person’s wishes. The reference to written con-sent is an evidential rule with the obvious benefits of certainty but it is not inviolable where the circumstances may require the Court to intervene.

Further, the court added the following comments to characterize the significance of its decision (at para. 104):

This is a case very much on its own particular facts. I agree with Ms Richards [Mr. Jennings’s lawyer] it will not open any floodgates. Parliament intended to enable a deceased person whose gametes had been used to create an embryo with their partner for that partner to be the named person to use that embryo after their death, provided it was the deceased’s wish recorded in writing. In my judgment the court can and should read down the requirement in Schedule 3 to dispense with the requirement for written and signed consent in this limited situation where a person has been denied a fair and reasonable opportunity in their lifetime to provide consent for the posthumous use of their embryos and there is evidence that the court concludes, directly and/or by inference, that if that opportunity had been given, that consent by that person would have been provided in writing. This does not, in these very limited circumstances, go against the grain of the legislation and ensures Mr Jennings’ Convention rights are respected.

A contrast with British Columbia

The Jennings decision in general and these comments in particular stand in contrast to the leading British Columbia case on written consent to the posthumous use of genetic material for fertility treatments, L.T. v D.T. Estate, 2020 BCCA 328. In this case, the court of appeal emphasized the importance of upholding a legislative requirement for written consent:

[23] The effect of the AHRA and the Regulation read together is unequivocal and clear. In the exercise of its power over the criminal law, Parliament has declared definitively what will count as consent for permissibly removing reproductive material posthumously from a donor. No other forms of “consent” can have any application in rendering the posthumous removal of reproductive material lawful. Implied, hypothetical, imputed, or substituted consent are simply not consent for the purpose of avoiding the prohibition set out in s. 8 and the Regulation. Parliament has provided for legal certainty in what is, without doubt, a morally challenging and humanly complex area.

[24] Respectfully, this is not, as was suggested in argument, an interpretation of the statute lacking in nuance. It is not a narrow reading. It is a recognition that Parliament has made a policy choice. Parliament has defined the only circumstances in which it is lawful to remove and use reproductive material from a donor. That choice reflects the value Parliament has placed on a donor’s individual autonomy and an individual’s control over his or her body. It has made that choice in the face of numerous deep moral and ethical dilemmas posed by new reproductive technologies. [emphasis in original]

How did these courts arrive at such different conclusions? This short summary can’t definitively answer that question, but it can point to two sets of contrasts that could form the basis of a fuller, more detailed answer.

• Factual contrasts. In L.T. v D.T. Estate, the BC Court of Appeal noted that “[n]either Mr. T nor Ms. T considered what would happen if one or other of them died. They did not turn their minds to the possible posthumous use of their reproductive material. The judge concluded that, like most other young couples, they had not put their minds to that circumstance.” In contrast, Mr. Jennings and Ms. Choya were a middle-aged couple, who had undergone many years of fertility treatment, during which they had created a significant evidentiary record in their actions, their statements to close friends and family, and their written documents, all of which indicated a clear desire “that Ms Choya would have wanted Mr Jennings to be able to use their partner-created embryo in treatment with a surrogate in the event of her death” (Jennings at para 31; see also paras 92–94).
• Legal contrasts. Legally, the two cases turn on the courts’ interpretation of the complex legal frameworks governing assisted reproduction in Canada and the United Kingdom. These legal frameworks differ, of course, at the level of detail. For example, the UK legislation contains a provision (not found in the Canadian act or regulations) stating that a person who gives consent “must be provided with such relevant information as is proper”—which the court noted wasn’t fulfilled in Ms. Choya’s case (at paras. 90, 101). But a more striking contrast is the role that constitutional law plays in the two judgments. For the BC Court of Appeal, the branch of constitutional law that was engaged was the division of powers between the federal and provincial governments. This consideration guided the court in interpreting the legal framework (“Before I set out the legislative scheme, I repeat that the only issue before us is one of statutory interpretation. Parliament has enacted the provisions we must interpret further to its constitutional power over the criminal law. The provisions in issue are part of the criminal law and the prohibition of the removal of a donor’s reproductive material without consent is criminal in nature. This fact influences statutory interpretation because in enacting a criminal prohibition one would expect Parliament to attempt to achieve clarity and certainty.”) In contrast, the English High Court drew on the European Convention on Human Rights (the equivalent of the Canadian Charter of Rights and Freedoms) in interpreting the UK legal framework (“Mr Jennings’ Article 8 right to respect for the decision to become a parent in the genetic sense has been interfered with. The interference with that right is not proportionate on the facts of this case. Whilst the requirement for writing undoubtedly pursues a legitimate aim, in the circumstances of this case, where, on the findings the court has made, there was a lack of opportunity to Ms Choya to provide that consent in writing, in circumstances where I conclude she would have given that consent, the interference with Mr Jennings’ Article 8 right would be significant, final and lifelong. There are no weighty countervailing factors to justify the significant interference, there is no conflict of individuals’ rights and permitting the application would not undermine a fundamental objective of the statutory scheme, namely the requirement for consent”—at para. 102).

The post UK court allows posthumous use of embryo despite lack of written consent first appeared on British Columbia Law Institute.

The provisions of the Manitoba bill most closely resemble those found in Saskatchewan’s parentage legislation, which was enacted in 2020 and is currently the newest legislation on parentage in Canada. The Manitoba bill covers a range of topics, including the following:

• presumptions of parentage for a child conceived by sexual intercourse;
• parentage in cases involving assisted reproduction (which is defined in the bill as “a method of conceiving a child other than by sexual intercourse, such as by artificial insemination or in vitro fertilization”);
• declaratory court orders of parentage;
• surrogacy agreements and declaratory orders applicable to cases involving surrogacy.

In a departure from Saskatchewan’s legislation—as well as legislation in British Columbia and Ontario—the Manitoba bill provides, as a “rule” of parentage applicable “[f]or all purposes of the law of Manitoba” that “[a] child has no more than two parents”: see new section 18 (1) 4.

The bill also provides that the best interests of the child test, which is stated to be “the paramount consideration of the court” in an early section of the The Family Maintenance Act (the statute that hosts Manitoba’s parentage legislation), doesn’t apply to a general court order declaring parentage: see new section 24.4.

The bill received second reading (PDF) in Manitoba’s legislature on 26 November 2021. By virtue of clause 24, the bill will come into force as Manitoba’s new parentage legislation “on the day it receives royal assent.”

The post Manitoba introduces new parentage legislation first appeared on British Columbia Law Institute.