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Baby making and the law

The ins and outs of BC’s revised Family Law Act

Under BC’s revised Family Law Act, parentage now depends on who intends to be parents, rather than on who contributed genetic material.  Credit: DGLimages/iStock/Thinkstock

Not so long ago if two lesbians wanted to have a baby they would ask a friend to donate sperm; two gay men might find someone who would carry their child as a surrogate.

In either case, the status of the sperm donor, or the gestational carrier, was not legally clear, so everyone wrote donor insemination or surrogacy agreements.

Under BC ’s revised Family Law Act parentage now depends on who intends to be parents, rather than on who contributed genetic material.

The means, for example, that the status of a sperm or egg donor has been clarified: they are not parents of the child born with their genetic material unless they have made an agreement with the intended parents to be a parent.

The revised Act also means that a baby can have up to five — or perhaps more — legal parents on their birth certificate. (Although, even if all five of those parents live together, none of them can have sex with more than one of the others since polygamy and polyamory are still offences under the Criminal Code.)

As for surrogacy, it’s legal as long as the parties sign an agreement with the gestational carrier both before getting pregnant, and after delivering the baby.

Now, it may seem possible to pick any two, or three, or five parents for your baby, but that is only true as long no one has sex to conceive the child. Any child conceived through sexual intercourse can only have those two people as their parents.

But if the same two people conceive their baby by turkey baster, as “intentional parents,” they can add extra parents to the child’s birth certificate. For example, if they use sperm from a donor as well as a gestational carrier, they could add both, if everyone agrees.

So the takeaway lessons from the changes in family law are:

  • Unless you are planning to have a traditional mom-and-dad two parent family, don’t conceive by sexual intercourse.

  • If you are going to use a surrogate, or have any procedure that requires a fertility clinic, you must get written agreements before a baby is conceived about who the parents will be.

With four other lawyers, barbara findlay (who lower cases her name) co-founded Fertility Law BC, a working group developing best practices for lawyers facing legal issues around the conception of children. Fertility Law BC has organized BC’s first-ever continuing legal education seminar on the subject.

Read findlay’s booklet Choosing Children, on her website, and see a lawyer before you get pregnant, so you don’t deliver a bundle of legal problems along with your baby.