Conversations on adoption, family, parentage and the law

Consent to Adoption

The purpose of this Act is to provide for new and permanent family ties through adoption, giving paramount consideration in every respect to the child’s best interests.  B.C. Adoption Act, section 2

Adoption is a transformational moment in the life of a family.  It marks legal recognition of a new parent-child relationship.  Equally significantly, it severs the legal relationship between the child and his or her birth parent.

While we celebrate adoption as a means of creating and recognizing family, in some contexts adoption has had a darker side.  Fear of unethical adoption practices, including child trafficking, has led Canada and other nations to suspend the adoption of children from a number of countries, including Cambodia, Nepal and Guatemala.

Closer to home, there is the recent news that a possible class action lawsuit has been commenced in B.C., seeking compensastion for birth mothers who allege they were coerced into relinquishing their babies for adoption when they gave birth outside of marriage in the 1940s – 1990s.  The class action has yet to be certified, but is anticipated to be the first of several such lawsuits that are expected to be filed across the country.

Contemporary adoption law recognizes the fundamental significance of severing the legal parent-child relationship, and strives to balance respect for birth parents with the overarching objective of furthering the child’s best interests.   In B.C., a birth mother’s consent to the adoption of her infant is only valid if it is given at least 10 days after the birth and is made in writing, under oath, after having been advised about the adoption by a lawyer or social worker.  The birth mother may retract her consent until 30 days after the child’s birth, even if the infant has already been placed with her prospective adoptive parents.

Birth fathers must also consent, provided they have acknowledged paternity, and/or signed the child’s birth registration or registered with the Birth Father’s Registry  (or have otherwise been identified as the child’s father under the Adoption Act).   An adoption cannot proceed without the birth parents’ consent unless the court is satisfied it is the child’s best interests to do so.

And when an older child is being adopted, the child herself must consent.  Commonly these are step-parent adoption situations, or cases where a child has been in the permanent care of the Ministry.  If the child is 12 or older, the court cannot make the adoption order without the child’s consent (unless she is incapable of giving that consent due to a mental disability).  The child can also revoke her consent at any time until the order is made.  Children over the age of 6 but under 12 must be interviewed by a social worker or other qualified person and a report of their views put before the court (see Adoption Regulation, section 16).

 

 

What Adoption is not (or shouldn’t be)

You may have read about the Florida millionaire attempting to protect his fortune from a lawsuit by adopting his girlfriend, who is 42 years old.  According to media reports, as his legal child the girlfriend then becomes a beneficiary under a family trust set up for the benefit of his children.  As a result, the girlfriend/daughter can receive payouts from the trust, while the man’s creditors– including anyone with a court judgment against him– can’t touch the money, because it is held in trust for his children.

Could that happen here?  Should it be able to happen here?

The short answer to both questions is NO.  

First, B.C.’s Adoption Act  requires that if someone over the age of 19 is going to be adopted, the court must be satisfied that the person being adopted– the intended “child”–  actually lived with the person who wants to adopt them as a member of the family, and was supported by that person while still a child. The applicant must also convince the court that there is an acceptable reason for the adoption order to be made. 

Second, to allow such adoptions would be contrary to public policy and common sense, on many levels.

One objection is that adults adopting their lovers or spouses results in incestuous relationships, with possible criminal consequences– in some jurisdictions, the criminal definition of incest includes sexual relationships between persons related by adoption.  In addition, there is no roadmap for what should happen if the “parent” and “child” end their romantic relationship.  They can split up, but unless the “child” finds someone else to adopt him or her they will still be parent and child, with the legal and moral obligations to each other that stem from that relationship.  Estate law may give them inheritance rights and standing in an estate dispute.  And while it sounds like a stretch, in some jurisdictions they could face the possibility of parental support obligations.

This not what adult adoption laws are for.  Adoption  is about building family, not protecting people from creditors.

Bottom line– this is not what adoption laws are for.  Adult adoption is about building family, not protecting people from creditors.  In some places, adoption has occasionally  been used by same-sex couples to establish legal rights and protections for their partners, but it has been a tool of desperation utilized by couples with no other means of protecting each other.  Legal recognition of same sex relationships makes such well-intended use of adult adoption unnecessary.

Best of luck to the Florida millionaire and his girlfriend/daughter should they part ways.  Thankfully in BC we can just watch their drama from the sidelines, assured it won’t happen here.

Sperm donor case now in Court of Appeal

This week, the BC Court of Appeal is hearing the case of Olivia Pratten, the Ontario journalist who is seeking the right of children born through sperm donation to know their biological origins.

Last year, Madam Justice Elaine Adair of the British Columbia Supreme Court struck down provisions of the Adoption Act as unconstitutional, finding that the Act failed to provide Ms. Pratten and other children born through assisted reproductive technologies with the same rights to information about their biological parents as are provided for children who have been adopted (Pratten v. British Columbia ).  Justice Adair gave the province 15 months to correct the problem by amending the legislation.  She also ordered an injunction that prohibits sperm banks from destroying donor records or transfering those records outside of B.C.

Prior to the injunction, it was lawful for such records to be destroyed after after six years, although practices varied between clinics.

The BC government is appealing the decision, arguing that existing laws permitting anonymous sperm donation are constitutional.

“Donor offspring of anonymous donors. . . are left with the same sense of genealogical bewilderment that has so negatively affected adopted children’s sense of self, belonging and identity and indeed led to the transformation of adoption laws” — Dr. Diane Ehrensaft, expert opinion in Pratten v. British Columbia

For Ms. Pratten herself, any change to the law is likely too late.  It sounds as though the records that could have identified the sperm donor in her case were destroyed several years ago.   As medical advances lead to increasing use of assisted reproductive technologies,  however, the  issues of whether and how individuals in Ms. Pratten’s situation can access information about their genetic origins– and how those records are to be preserved and regulated– must be addressed.   I will be following the Court of Appeal’s decision with interest.

 

Children born of assisted reproductive technologies– rights to information

Parents considering the use of assisted reproductive technology to form their families face a daunting range of questions.  A critical one is considering what information will be available to their children about their genetic origins.

Some parents using sperm donation, for example,  deliberately chose a donor known to their family, someone they hope will have a connection with their child and who can help answer questions they or their child may have regarding her family and medical history.  Others have preferred as much anonymity as possible, protective of their family’s privacy and wanting to avoid the possibility of future contact from their child’s genetic father.  At the same time, donors of genetic material often want assurance that their donation will remain anonymous and that they will not be contacted in future or face any possibility, no matter how remote, of an obligation to the child.

Recently, the children affected by these decisions are being given a voice in the debate.    New in-vitro fertilization program guidelines issued by the Alberta College of Physicians and Surgeons last month  were critiqued in the media for falling short in their failure to require that the identity and medical history of donors be recorded and preserved.

Without such a requirement, a child’s right to information about his or her origins is rendered moot, because the information may not exist.  Records may have been destroyed or never kept in the first place.

That was the issue before the BC Supreme Court last year, when the court mandated this province to establish a system that will give children born through assisted reproductive technologies the same access to information about their biological origins as is provided for adopted children under the provincial Adoption Act.   The decision (Pratten v. British Columbia) heralded the end of anonymous sperm donation in British Columbia.  It is currently under appeal.

While children’s rights to information about their biological origins must be addressed, concerns arise that would-be donors of reproductive material may now have second thoughts about donating at all, out of fear they may later be contacted or found to have some form of legal obligation.  Parents who use reproductive technologies also need certainty about their parental status.   In B.C., pending changes to the law should put some of those concerns to rest.    As discussed here earlier, when the new Family Law Act comes into force the only legally recognized parents of a child born through assisted reproductive technology will be the mother who gives birth to the child and her married or common-law spouse.  Unless the parties agree otherwise before the child is conceived, a donor will have no legal status as a parent.

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.