Assisted Reproduction includes donor insemination, in vitro fertilization (IVF), intrauterine insemination (IUI), and surrogacy.

Prior to the Family Law Act (“FLA”), family law in BC was premised on very basic and incomplete notions of family: children were conceived through sexual intercourse and their parents were the woman whose body the child came from (the child’s mother) and the male partner who participated in the sexual intercourse that conceived the child (the child’s father). The Family Relations Act, the Law and Equity Act, and the Vital Statistics Act all operated under the presumption that there was only one (“right”/ “natural”) way to create a family and only one way to become a parent; adoption was dealt with separately under the Adoption Act. This narrative excluded same-sex, transgender, intersex, and queer couples, opposite sex couples who could not conceive naturally, and single parent families whose child(ren) were conceived through non-traditional methods.

This changed once the BC Human Rights Code was amended to include “sexual orientation” as a protected ground. The previous legislative scheme in place was not only deemed exclusionary, but a violation of human rights. Part 3 of the FLA was a response to the evolution of the law. It broadened the concept of what constitutes a “family” under law by introducing a statutory scheme and definitions for the determination of parentage, including parentage of children conceived by AR. Importantly, the Law and Equity Act and the Vital Statistics Act were also amended to reflect the new parentage scheme. These changes allow for a more comprehensive legislative “net” which contemplates many possible family configurations.

Comprehensive legislation is crucial to the realm of AR. While scientific and technological advances have opened the door for many individuals to become parents, they have also complicated the law. For example, outside of the AR context, the person who births a child is usually automatically deemed to be the child’s parent. However, within the AR realm, being a birth mother (which is a defined term in the FLA) does not automatically make someone a parent. This is important in surrogacy situations where it allows a surrogacy agreement to state who the intended parents are. Using defined terms and clearly stating expectations is both important and necessary in AR, since it ensures clarity and protects individuals’ rights.

As progressive as the FLA is, it is far from perfect. For example, since trans men can also gestate and birth children, the focus on “mothers” and “women” can be alienating for some families. In an attempt to bring clarity to the field, the narrow definitions exclude individuals who may need to use them for the purposes of drafting agreements and seeking protection from the law.

Starting a family is an exciting time. For those individuals looking into AR, it is important to connect with a family lawyer who practices in the area of AR so that you are aware of your risks and options and can avoid problems down the road.

This article does not provide legal advice and the information should not be taken as such. For proper legal advice and current information about the law, you must speak to a lawyer.