Who is a parent?


Until recently British Columbia didn't have comprehensive laws setting out the rules that legally defined a parent. The question has become more complicated with more people using assisted reproduction, including artificial insemination and vitro fertilization. This gap in the law created a lot of uncertainty for families using these new technologies.

The Family Law Act, which has a part dedicated to Determining Parentage, has changed this. This fact sheet explains the basics of the new law. This is a complicated area, so if you're thinking about using assisted reproduction, see a lawyer about how the law applies to your particular situation.

The general rule

If a child is conceived naturally, a child's parents are his or her birth mother and biological father. This can be different if a child is adopted or born as a result of assisted reproduction (such as sperm or egg donation).

Birth mother

The birth mother is the child's legal mother at birth. This applies no matter how the child was conceived. Even if the child was conceived using someone else's egg, the woman who gave birth to the child is the child's mother.

There are two ways a birth mother can give up her status as mother: adoption or surrogacy.

Biological father

If there's no assisted reproduction, the child's biological father is the father.

A man is presumed to be a child's biological father, unless he can prove he's not, in the following circumstances:

  • He was married to the child's mother on the day the child was born.
  • He was married to the child's mother and, within 300 days before the child's birth, the marriage was ended by his death or divorce.
  • He married the child's mother after the child's birth but the mother acknowledges he's the father.
  • He and the mother both acknowledge he's the father and put his name on the birth certificate.
  • He was living in a marriage-like relationship with the mother on the day the child was born or 300 days before the child was born.
  • He acknowledged that he's the father and signed an agreement under the Child Paternity and Support Act.

Birth mother's partner

In cases of assisted reproduction, except surrogacy, the person married to or in a marriage-like relationship with the birth mother when the child was conceived is the child's parent unless:

  • the person didn't agree to be the child's parent, or
  • the person withdrew his or her consent to being the child's parent.

Sperm, egg, or embryo donor

Donating sperm or an egg or embryo doesn't make someone a parent. However, when someone donates sperm or an egg or embryo, there are some circumstances in which the donor can become a parent and the child can have more than two parents.

  • The intended mother (or the intended mother and her partner) and the donor have a written agreement before conception that the donor will be a parent.
  • A woman who acts as a surrogate and the intended parent(s) agree that the surrogate will give birth to a child through assisted reproduction, and they all agree in writing before conception that the birth mother will be a parent.

Surrogacy

Surrogacy is when a woman uses assisted reproduction (like artificial insemination or implantation of an embryo) to have a child for someone else. She is called the surrogate.

For the intended parent(s) to become the legal parent(s) in a surrogacy arrangement, the following conditions must be met.

  • Before conception, the surrogate and the intended parent(s) make an written agreement that says:
    • the surrogate won't be the parent of the child,
    • the surrogate will give up the child to the intended parent(s), and
    • the intended parent(s) will be the child’s parent(s)
  • After the child is born, the intended parents will be the parents as long as:
    • before the child was born, no one withdraws their consent.
    • after the child is born, the surrogate gives written consent to give up the child and the intended parents take the child into their care.

This means that the surrogate and intended parent(s) have to come to an agreement before conception and then again after the child's birth. Courts won't enforce an agreement made before conception, although the courts will consider it as evidence of what the parties intended if a dispute arises.

Disputes or uncertainty about parentage

If there's a dispute or any uncertainty about whether someone is a parent, you can apply to the Supreme Court to decide. You an also apply to the Provincial Court if you're applying for another family law order in that court and the court needs to decide who the parents are to make a decision.

Either court can order any person, including a child, to undergo parentage tests (medical tests) to help determine the legal parent(s).

Adoption

None of these laws apply to children who are adopted. Once a child is legally adopted, he or she becomes the child of the adoptive parent(s) for all purposes.

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