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In Family Law Act (Re), Justice Fitzpatrick of the Supreme Court of British Columbia granted a same sex couple’s application for a declaration of parentage following the birth of their child.  The child’s birth was made possible by the contribution of eggs from a female donor and the participation of a surrogate mother.  In addition to ordering and declaring that the male couple (D and M) are the child’s parents, Justice Fitzpatrick ordered and declared that the egg donor (M) and the surrogate (E) are not the child’s parent.

Why Was the Application for a Declaration of Parentage Necessary?

Justice Fitzpatrick began her discussion of the issues in this case by noting the following:

“The law concerning assisted reproduction, and the parenting consequences to those participating in that process, has been evolving for some time. In large part, the law has lagged behind the science of reproduction and the social forces that have arisen from the resulting family dynamics.”

The facts in this case were as follows:

  • D and M were a same-sex couple residing in Quebec;
  • In 2011, eggs were retrieved from D’s sister, M.E., at a fertility clinic in Connecticut, U.S.A., and they were fertilized in vitro using M’s sperm; the embryos were cryopreserved;
  • In 2015, the couple entered into a surrogacy agreement with E.M. and her common-law spouse in which E.M. agreed to act as a carrier for the embryos;
  • An embryo was implanted into E.M., and the child was born later in 2015;
  • The birth was registered in B.C., and the registration referred to both D and M as the child’s parents;
  • D and M received a legal opinion from a Quebec lawyer that they needed a B.C. court order to have their parentage of the child recognized in Quebec.

The Declaration of Parentage

The Court concluded that it was appropriate in this case to grant the declaration of parentage, allowing D, M, and their child to function more fully as a legal family unit in Quebec.  The Court emphasized that the declaration would provide significant benefits not only to the two parents, but, importantly, to the child as well.  The Court was mindful of ensuring that the child’s best interests were paramount.

The benefits of declarations of parentage, as accepted by the Ontario Court of Appeal in A.A. v. B.B., were summarized by Justice Fitzpatrick as follows:

  • it is a life-long immutable declaration of status;
  • it allows the parent to fully participate in the child’s life;
  • it determines lineage;
  • it will determine other kindred relationships;
  • the declared parent may obtain important personal and identifying documentation for the child, such as a social insurance number, a health card, airline tickets and passports;
  • it may determine Canadian citizenship;
  • it will establish a parent’s right to register the child in school;
  • the declared parent has to consent to any future adoption;
  • it will allow that parent to assert rights as such under applicable legislation; and
  • it will allow that child to assert rights as such under applicable legislation, including perhaps those arising upon an intestacy.

The Egg Donor – Declaration of Non-Parentage

The parental status of M.E. is specifically addressed by the  Family Law Act, S.B.C. 2011, c. 25.  It provides that M, as a “donor”, is not a parent by reason only of the donation of her eggs:

24(1)   If a child is born as a result of assisted reproduction, a donor who provided human reproductive material or an embryo for the assisted reproduction of the child

(a)        is not, by reason only of the donation, the child’s parent,

(b)        may not be declared by a court, by reason only of the donation, to be the child’s parent, and

(c)        is the child’s parent only if determined, under this Part, to be the child’s parent.

(2)   For the purposes of an instrument or enactment that refers to a person, described in terms of his or her relationship to another person by birth, blood or marriage, the reference must not be read as a reference to, nor read to include, a person who is a donor unless the person comes within the description because of the relationship of parent and child as determined under this Part.

Although the Court did not feel it was particularly necessary in this case, the Court granted the applicants’ request for an order and declaration that M.E. is not a parent of the child.

The Surrogate – Declaration of Non-Parentage

D and M also sought a declaration from the Court that E.M., as the surrogate, was not a parent of the child.  The Court found that the parties had acted in accordance with all applicable legislation, and that the Surrogacy Agreement (signed by all parties in this case) properly addressed all the necessary agreements and intentions.  The written agreement provided that:

  • E.M. agreed to act as the “birth mother” for the child;
  • E.M. and J.N. (her common-law spouse) agreed to the waiver, termination and renouncement of all parental rights to the child in favour of D and M, and to do all acts necessary to rebut any presumption of parentage on their part;
  • E.M. and J.N. agreed to recognize D and M as the parents of the child and to surrender custody of him to them upon his birth; and
  • E.M. and J.N. agreed that D and M shall be the parents of the child and shall have ‘sole and exclusive custody and assume the legal and social parental responsibilities for the child’.

The parties also acted in accordance with the Agreement following the birth of the child:  D and M took the child into their care and custody, and E.M. confirmed her written consent to surrender custody of the child.  The Court was therefore satisfied that it was appropriate to order and declare that E.M. was not a parent of the child.

Application Would Not Have Been Necessary if Parties Lived in British Columbia

In granting all orders and declarations sought by D and M in this case, the Court noted that the uncertainty in relation to the issues of parentage arose from Quebec law.  Had the parties resided in B.C., not Quebec, no such declaration of parentage and non-parentage would have been necessary.

If you have any questions about assisted reproduction or any family law matter, please contact Gelman & Associates at (416) 736-0200 or 1-844-742-0200 or contact us online for a confidential initial consultation.

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