Conversations on adoption, family, parentage and the law

B.C.’s new Family Law Act — coming March 2013

This week, the British  Columbia government announced that the long-awaited new Family Law Act will come into force on March 18, 2013.

What does this mean for parents and parents-to-be?

The new law makes significant changes to the legal language used to describe parenting arrangements, and to how property will be divided when relationships end.  “Custody” and “access” will be no more, replaced with “guardianship”, “parenting responsibilities” and “parenting time.”  Common law couples will now be subject to the same laws in regard to property division as married couples, and there will be a heighened emphasis on helping couples resolve their legal issues outside of court.

Arguably more profound, however, are the fundamental changes the new legislation makes to how families formed through reproductive technologies will be recognized in B.C.

In this area, the legislation provides needed clarity.  The new law expressly provides, for example, that the act of donating sperm will not be enough to make a man a parent.  Only the birth mother and her spouse will be recognized as the child’s parents.  Under section 27 of the Act, the donor will have no parental status, rights or obligations unless the parties enter into a written agreement prior to the birth that recognizes those rights.

Conversely, through the recognition of such agreements, it will now be possible for children in those families to have three legal parents — the birth mother, her spouse, and the biological father. (See my previous post on multi-parent families.)

The new legislation also provides that the biological parent of a child conceived after the parent’s own death can legally be that child’s parent. Essentially, this means that if a person has a child using sperm or ova that had been provided by their deceased spouse before their spouse’s death, both they and their deceased spouse may be recognized as legal parents of the child.  This seemingly esoteric change will have a profound impact on those families affected, by clarifying an uncertain area of the law and allowing the parents involved to give full legal expression to their personal wishes and intentions.

 

 

Court treats donated sperm as property

Last week, the BC Supreme Court ordered that donated sperm purchased and stored by a former lesbian couple was to be divided equally between them.

One of the women wanted to use the anonymous donor sperm, which was stored in sperm straws at a Vancouver fertility clinic, to have a child with her new partner.  She sought an order giving her ownership of the sperm.   Her former partner argued that the sperm should be destroyed.

In her reasons,  Madam Justice Russell framed the issues as follows:

1.     Are the sperm straws property?

2.     Is it relevant for the court to consider the best interests of the existing children and any future donor offspring when deciding whether the claimant should be awarded the sperm straws?

3.     Is insemination from an anonymous sperm donor proscribed in British Columbia?

4.     If the answer to the first question is yes, how should the sperm straws be divided between the claimant and the respondent?

In the end, Madam Justice Russell decided to treat the frozen sperm as property because the women themselves, and everyone involved, had treated the sperm like property.   The sperm straws were purchased by the parties and used to their benefit, to conceive children together.   They had the right to deal with the sperm straws as their property.  When their relationship ended, the parties had divided all of their joint property equally between them.  So too should they divide the sperm straws.

Justice Russell also decided that in the circumstances of this particular family law case, it would not be appropriate for the court to undertake an analysis as to what might be in the best interests of the children born to the parties, or to any potential child that may be conceived by the claimant and her new partner.   She pointed out that when a relationship between a man and a woman breaks down, the woman cannot stop the man from fathering children with other women.  Neither party has any right to restrict the other’s right to procreate.  Neither should the parties here.

 . . . to engage in any such analysis [of the best interests of the children who would be half-siblings] would be borderline discriminatory to couples, such as the parties, who must conceive through sperm donation should they wish to have children that are biologically their own — Madam Justice Russell, para 85

As for the legality of anonymous sperm donation in British Columbia,  the court left that  issue for another day.  The lawyer for the woman who wanted the sperm destroyed argued that last year’s Pratten v. British Columbia (Attorney General)  decision proscribed anonymous sperm donation.   Madam Justice Russell took a practical approach, concluding that determining the legality of anonymous sperm donation was outside the scope of the case, and that it was too late to apply such arguments anyway– the sperm had already been donated and purchased.   Moreover, the Pratten decision is still before the Court of Appeal, with judgment reserved.  Stay tuned.

 

 

Adoption, step-parents and inheritance: why you need a Will

In B.C. if a parent dies without a will,  any property falling into their estate is divided between their spouse and children.  If they don’t have a spouse, the children receive it all.

But what if the parent’s child is  not legally their child?

The courts have held that a step-child who was  not adopted by the deceased parent will not inherit in these circumstances.  (If you are looking for it in the legislation, it’s called the distribution of an “intestate estate”– where there is no will, the deceased’s parent’s estate is divided between the deceased’s spouse and lineal descendents.  See Part 10 of the Estate Administration Act).

This can have serious implications for families who are waiting for adoption or parentage paperwork to complete, or who have taken a child into their lives but have not taken legal steps to formalize the parent-child relationship.

Consider these scenarios:

A couple marry when one of them is widowed and already has a child.  The step-parent is intimately involved in the raising of that child and considers herself a mother to him;

A woman fosters a boy who then remains part of the family into adulthood.  She considers him a son, but no adoption application is ever made;

A same-sex couple have a child through surrogacy.  One of the men provides the sperm and is named as the child’s father on the birth certificate.  Both of the fathers consider themselves equal parents, but aside from an agreement with the surrogate no other paperwork is done.

In each of these cases,  if the parents die without wills that properly address this issue, these children could be left with nothing– regardless of what the parent may have wanted.   In some circumstances, the child or other family members may have to decide whether or not to pursue potentially expensive and emotionally divisive litigation.

When it comes to estates law, being a parent in act and spirit is not enough.  Even written agreements about parentage may not be enough.

What can address the problem is thoughtful estate planning.   Parents can specify in their wills exactly who is to benefit from their estate and what they are to receive, and, if necessary, document why they are making these decisions. They can also consider using beneficiary designations on life insurance, RRSPs and other plans to ensure their wishes are met.  Estate planning is important for everyone who has children, but it is particularly critical for families in these circumstances.

If you have any doubt as to whether your existing will meets the needs of you and your children, get legal advice.

 

Multi-parent families: in BC, some children may soon have three legally recognized parents

You don’t really understand human nature unless you know why a child on a merry-go-round will wave at his parents every time around – and why his parents will always wave back.  ~William D. Tammeus

For many, these memorable words by Pulitzer Prize winning journalist William D. Tammeus evoke images of a conventional mom and pop family at the summer fair.  The reality, of course, is that an individual needn’t fit the traditional definition of “parent” to have that profound parental connection to a child.

Blended families and close extended family relationships are increasingly common. It takes a village, the saying goes, and often a small village is indeed involved in raising a child—step-parents, grandparents, partners, aunts, uncles, friends, siblings.  No matter how many family members might be waving to her on the merry-go-round, however, traditionally a child has not been able to have more than two legally recognized parents.   British Columbia’s Law and Equity Act (s. 61) states that, subject to the Family Relations Act and the Adoption Act, a person is considered to be the child of his or her “natural parents”.

This began to shift in Ontario in 2007, when the province’s Court of Appeal found that a child born to a lesbian couple through artificial insemination had three legal parents—the birth mother, her same-sex spouse, and the biological father, who donated the sperm (A.A. v. B.B. and C.C.)    Response to the decision was as out-spoken and varied as it was predictable.

Now British Columbia is poised to formally recognize the reality of three parent families, with the introduction of the new Family Law Act. When the Act comes into force, which is expected sometime over the next year, children born through assisted reproductive technology will be able to have three legally recognized parents, provided all of the parents involved agree in writing before the child is born.  Without such an agreement, only the birth mother and her spouse or partner will be recognized as the child’s parents.  These changes will bring needed clarity and flexiblity to the laws governing family relationships.

But in the meantime, there is no such clarity.  The fact you wave every time your child goes around the merry-go-round may make you a parent in spirit, but not in law.  As I discussed in a previous post, parents of children born through reproductive technologies often have to resort to the courts to obtain an order formally confirming their status and severing any rights of the donor.  If your family is considering using assisted reproductive technology, be sure to get legal advice on the specifics of your situation and the laws in your jursdiction.

 

 

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.