Conversations on adoption, family, parentage and the law

Legally speaking, what does it mean to be a parent? The question facing parents using assisted reproductive technology

What, legally, does it mean to be a parent?

The majority of people with kids don’t think about that much. We know we are parents. We think we know what it means.

But for parents going through an adoption process or who are building their family with the help of surrogacy or other reproductive technologies, parenting itself might seem like the easy part. Obtaining legal recognition as their child’s parents can be much more complicated.

If you adopt a child, or have a child through surrogacy or assisted reproductive technology, you likely need a court order to confirm your legal standing as parent of your child. It could be an adoption order, or a declaration of parentage. Depending on the circumstances, even being named as a parent or co-parent on your child’s birth certificate may not be enough. Bizarrely, in some situations this can be the case even if you are the genetic parent of your child. A court order is important not just to confirm your standing as a parent, but to provide certainty that other people involved in the process of your child’s birth—such as a sperm donor— don’t later come forward and seek that standing.

The rules are different in different provinces, and are changing all the time. In British Columbia, new legislation is in the works that will make it clear that the fact someone donates reproductive material is not enough to make that person a parent of the children resulting from that donation. Only the birth mother and the birth mother’s married or common-law spouse will be deemed to be parents– unless the parties involved agree otherwise through a written agreement before the child is conceived.

This is just one of many changes the new Family Law Act( Bill 16) has in store for British Columbians planning to have children through adoption or assisted reproductive technologies. The Act is not yet in force, but when it is, it promises some needed certainty for parents. Stay tuned.

In the news: Parental benefits available for foster parents planning to adopt

Earlier this month, the federal government announced that families who foster children with the intention to adopt will be eligible for parental benefits under the Employment Insurance program.

Parental benefits allow parents time away from work to bond with their newborn or newly adopted children.    It goes without saying that such time is no less important—perhaps even more so— in the case of foster parents who plan to adopt, where the child is often older and may arrive in the home of her prospective parents with a history of trauma and fears of abandonment.

An estimated 30,000 Canadian children living in care have parents whose parental rights have been ended by the courts.  In B.C., as many as 1,300 children like this are wait-listed for adoption through the Ministry of Children & Family Development at any given time.  Most of these kids are school age; many are teens.  Some have siblings, who are all looking to be adopted together.  Many will turn 19 without ever finding a permanent family, having spent their childhoods in foster care or institutional placements.

The EI scheme allows an adoptive parent  up to 35 weeks of parental benefits.  Under the new rules, it will no longer be necessary for a foster parent to have commenced adoption proceedings in court before becoming eligible for benefits, a step which, depending on the province, can take several months after the child is placed in their home to complete.  Instead,  a  “demonstrable commitment to adopt” will be all that is required.

If this small change to the law makes it easier for even a handful of Canadian families to adopt the children in their care, it will have been well worth it.