Do Donors and Surrogate Parents Have Child Support Obligations?

Aug 26

Is a Donor Automatically a Parent?

Fertility law and assisted reproduction is a fascinating area for family law practitioners. The Assisted Human Reproduction Act, S.C. 2004, c.2 is the legislation that regulates assisted reproductive technologies including surrogacy.

In BC, the Family Law Act, S.B.C. 2011, c.25 regulates situations in which families use assisted reproductive technologies, to determine parentage of a child. The need for this legislation arose due to social trends including legalization of same-sex marriage, increase in single parenting, and the recognition that biology, is not a prerequisite to establishing legal parentage. The following are the relevant sections of our Act.

S. 24 of the Family Law Act in BC states that:

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

(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.

What Happens If Reproduction Was Not Assisted?

S. 26 of the Family Law Act, says that:

(1) On the birth of a child not born as a result of assisted reproduction, the child's parents are the birth mother and the child's biological father.

(2) For the purposes of this section, a male person is presumed, unless the contrary is proved or subsection (3) applies, to be a child's biological father in any of the following circumstances:

(a) he was married to the child's birth mother on the day of the child's birth;

(b) he was married to the child's birth mother and, within 300 days before the child's birth, the marriage was ended

(i) by his death,

(ii) by a judgment of divorce, or

(iii) as referred to in section 21 [void and voidable marriages];

(d) he was living with the child's birth mother in a marriage-like relationship within 300 days before, or on the day of, the child's birth;

(e) he, along with the child's birth mother, has acknowledged that he is the child's father by having signed a statement under section 3 of the Vital Statistics Act;

(f) he has acknowledged that he is the child's father by having signed an agreement under section 20 of the Child Paternity and Support Act, R.S.B.C. 1979, c. 49.

(3) If more than one person may be presumed to be a child's biological father, no presumption of paternity may be made.

What Happens When Reproduction Was Assisted?

S. 27 of the Family Law Act in BC says that:

(1) This section applies if

(a) a child is conceived through assisted reproduction, regardless of who provided the human reproductive material or embryo used for the assisted reproduction, and

(b) section 29 [parentage if surrogacy arrangement] does not apply.

(2) On the birth of a child born as a result of assisted reproduction in the circumstances described in subsection (1), the child's birth mother is the child's parent.

(3) Subject to section 28 [parentage if assisted reproduction after death], in addition to the child's birth mother, a person who was married to, or in a marriage-like relationship with, the child's birth mother when the child was conceived is also the child's parent unless there is proof that, before the child was conceived, the person

(a) did not consent to be the child's parent, or

(b) withdrew the consent to be the child's parent.

Assisted Reproduction After Death

Under s.28 of the Family Law Act in BC:

(1) This section applies if

(a) a child is conceived through assisted reproduction,

(b) the person who provided the human reproductive material or embryo used in the child's conception

(i) did so for that person's own reproductive use, and

(ii) died before the child's conception, and

(i) gave written consent to the use of the human reproductive material or embryo, after that person's death, by a person who was married to, or in a marriage-like relationship with, the deceased person when that person died,

(ii) gave written consent to be the parent of a child conceived after the person's death, and

(iii) did not withdraw the consent referred to in subparagraph (i) or (ii) before the person's death.

(2) On the birth of a child born as a result of assisted reproduction in the circumstances described in subsection (1), the child's parents are

(a) the deceased person, and

(b) regardless of whether he or she also provided human reproductive material or the embryo used for the assisted reproduction, the person who was married to, or in a marriage-like relationship with, the deceased person when that person died.

Surrogacy Arrangements

The Family Law Act in BC provides for surrogacy arrangements. S. 29 of the Family Law Act in BC states that:

(1) In this section, "surrogate" means a birth mother who is a party to an agreement described in subsection (2).

(2) This section applies if,

(a) before a child is conceived through assisted reproduction, a written agreement is made between a potential surrogate and an intended parent or the intended parents, and

(b) the agreement provides that the potential surrogate will be the birth mother of a child conceived through assisted reproduction and that, on the child's birth,

(i)the surrogate will not be a parent of the child,

(ii)the surrogate will surrender the child to the intended parent or intended parents, and

(iii)the intended parent or intended parents will be the child's parent or parents.

(3) On the birth of a child born as a result of assisted reproduction in the circumstances described in subsection (2), a person who is an intended parent under the agreement is the child's parent if all of the following conditions are met:

(a) before the child is conceived, no party to the agreement withdraws from the agreement;

(b) after the child's birth,

(i) the surrogate gives written consent to surrender the child to an intended parent or the intended parents, and

(ii) an intended parent or the intended parents take the child into his or her, or their, care.

(4) For the purposes of the consent required under subsection (3) (b) (i), the Supreme Court may waive the consent if the surrogate

(a)is deceased or incapable of giving consent, or

(b)cannot be located after reasonable efforts to locate her have been made.

(5) If an intended parent dies, or the intended parents die, after the child is conceived, the deceased intended parent is, or intended parents are, the child's parent or parents if the surrogate gives written consent to surrender the child to the personal representative or other person acting in the place of the deceased intended parent or intended parents.

(6) An agreement under subsection (2) to act as a surrogate or to surrender a child is not consent for the purposes of subsection (3) (b) (i) or (5), but may be used as evidence of the parties' intentions with respect to the child's parentage if a dispute arises after the child's birth.

(7) Despite subsection (2) (a), the child's parents are the deceased person and the intended parent if

(a) the circumstances set out in section 28 (1) [parentage if assisted reproduction after death] apply,

(b) before a child is conceived through assisted reproduction, a written agreement is made between a potential surrogate and a person who was married to, or in a marriage-like relationship, with the deceased person, and

Rising infertility rates, along with the growing acknowledgement of diverse family structures have contributed to the increased use of assisted reproductive technologies. While our community is increasingly embracing alternative family forms and broader definitions of parenthood, our family laws in BC are also broadening to mirror such acceptance and definitions of parenthood. If you have any questions with respect to fertility law in BC, reach out for a consultation.

Abby Pang

Abby is a lawyer and loving mother of two children. She is an advocate for healthy families and children. She has turned her energy towards supporting families, by providing guidance and helping families navigate through the legal system, while empowering them to have a voice throughout the process.

Abby Pang’s journey began in Prince Albert, Saskatchewan. Subsequently, her family moved to the east side of Vancouver, before moving to Richmond, where she spent most of her childhood. Her father was a refugee who came to Canada in 1970, and from him she learned the meaning of grit.

In her youth, Abby experienced a breakdown in her family unit which resulted in divorce. She understands that marital breakdowns and divorces can be complicated, but also devastating. She also understands there are alternative options and ways to mitigate the damaging effects of the process.

Abby earned a bachelor’s degree from the University of British Columbia, studying psychology and family studies. She earned a law degree from Manchester Metropolitan University, exchange program through the Hong Kong University. In 2008, she returned to British Columbia to work in a large law office while completing her National Certificate of Accreditation. She then completed her articles in a boutique law firm in Vancouver. She was called to the British Columbia bar in 2012.

Abby has appeared in Provincial Court, Supreme Court and Court of Appeal. She deals with personal injury claims, sexual assault (civil) claims, and family law matters: Jansson v. Malone, 2021; Binning v. Kandola, 2021; Bergeron v. Malloy, 2020; Urwin v. Hanson, 2019; Lally v. He, 2016; Kandola v. Mactavish, 2016; Kweon v. Roy, 2016; Chan v. Caer, 2014; Saadati v. Moorhead, 2015; Loft v. Nat, 2015. In addition to her court experience, Abby takes a “family first” approach and is resolution-focused. She is registered through the International Academy of Collaborative Professionals.

As a lawyer, Abby Pang’s community involvement included volunteer work with the Federation of Asian Canadian Lawyers and the Canadian Bar Association Women Lawyers’ Forum. As well, she had the opportunity to assist at Rise Women’s Legal Center and Battered Women’s Support Services through volunteering with Amici Curiae Friends of Court.

Abby is the recipient of A Woman of Worth Leader of the Year Award 2023 for her outstanding achievements in strengthening her community/organization through innovative approaches to resolving challenges and inspiring meaningful change. She has been recognized nationally as a nominee of the YWCA Women of Distinction Awards 2023, which honours extraordinary women leaders and businesses.

In her personal time, Abby enjoys snowboarding, bike riding, and spending time with her family.

https://www.illumalaw.com/team

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