Who is a parent?

There are different ways to become a parent. You can become a parent by:

  • having sex with someone (sexual intercourse),
  • using assisted reproduction (for example, in vitro fertilization, sperm or egg donation, or a surrogate, or
  • adopting.

If a child is conceived through sexual intercourse, the child's parents are their birth mother and biological father (unless the child is adopted).

If you use assisted reproduction, the person who gives birth to the child is their birth mother. But another person can become the child's legal mother. See below to find out more about this.

Birth mother

The birth mother is the person who goes through the pregnancy and gives birth to the child. The law says she's the child's legal mother at birth.

Even if she used someone else's egg to get pregnant, the woman who gave birth to the child is the birth mother.

But the birth mother stops being the legal mother if:

  • the birth mother was a surrogate and all the legal rules about surrogacy are followed (see Surrogacy, below, for more about this), or
  • the child's adopted after birth.

Biological father

The man a woman had sex with is a child's biological father if the woman becomes pregnant and has a child.

The law says a man is assumed (that is, it's taken for granted) to be a child's biological father if:

  • he and the child's birth mother were already married when the child was born;
  • he and the child's birth mother were married but the marriage ended less than 300 days before the child was born because:
    • he died, or
    • he and the child's mother divorced;
  • he was living in a marriage-like relationship with the birth mother on the day the child was born or 300 days before the child was born;
  • he married the child's birth mother after the child was born and the mother agrees that he's the father;
  • he and the birth mother both agree he's the father and they put his name on the birth certificate;
  • he and the birth mother signed a statement under the Vital Statistics Act to say they agree he's the biological father; or
  • he signed an agreement under the Child Paternity and Support Act to say he agrees he's the father.

If a man says he isn't a child’s biological father, he can get a parentage test to show that he's not the father.

Birth mother's partner

If a child's born through assisted reproduction, the person who was married to the birth mother, or living with her as if they were married (you might call this a common-law relationship), when she became pregnant is the child's parent unless:

  • the person didn't agree to be the child's parent, or
  • the person changed their mind about being the child's parent.

The laws are different for surrogacy (see Surrogacy, below).

Can a child have more than two legal parents?

If you donate sperm, an egg, or an embryo, it doesn't mean you're a parent.

But there are ways a donor can become a parent. If this happens, the child can have more than two parents.

Here we use the words "intended parents" to mean the people who'll be the child's legal parents, but the information is the same for people who're planning to be a sole (only) legal parent.

Here's how a sperm, egg, or embryo donor can also be a parent:

  • The intended mother (the person who'll be the child's legal mother) (or the intended mother and her partner) and the donor write an agreement before the intended mother gets pregnant that the donor will be a parent. For example, a lesbian couple and a sperm donor.
  • A woman who acts as a surrogate and the intended parent (or parents) write an agreement that:
    • the surrogate will use assisted reproduction to get pregnant and have a child, and
    • the birth mother and the intended parent (or parents) will all be parents. For example, a gay male couple and the birth mother.

Surrogacy

Surrogacy is when a woman uses assisted reproduction (for example, artificial insemination or embryo implantation) to have a child for someone else. She's called the surrogate.

Here we use the words "intended parents" to mean the people who'll be the child's legal parents, but the information is the same for people who're planning to be a sole (only) legal parent.

Here are the steps intended parents have to follow if they want to become the legal parents in a surrogacy arrangement:

  1. Before conception (before the surrogate gets pregnant), the surrogate and the intended parents sign an agreement that says:
    • the surrogate won't be the parent of the child,
    • the surrogate will give the child to the intended parents, and
    • the intended parents will be the child's legal parents.
  2. After the child is born, the intended parents will be the parents as long as:
    • no one changes their mind before the child is born, and
    • the surrogate signs another document to confirm (say for sure) that she'll give up the child and let the intended parents become the legal parents.

This means:

  • the surrogate and intended parents sign an agreement before the surrogate gets pregnant, and
  • the surrogate signs another document after the child is born to confirm that she's letting the intended parents become the legal parents.

Courts won't enforce an agreement that's made before the surrogate becomes pregnant, but if there's a dispute (disagreement), they'll use it as evidence (proof) of what the surrogate and the intended parents wanted to happen.

Disputes or uncertainty about parentage

If you're not sure about who's a parent, you can apply to the Supreme Court and ask it to decide.

You can ask the Provincial Court to decide who's a parent if:

  • you're applying for another family law order in Provincial Court, and
  • it needs to decide who the parents are before it can make a decision.

The Supreme Court and Provincial Court can both order any person, including a child, to take parentage tests (medical tests) to find out for sure who the legal parents are.

Adoption

The laws are different for people who're adopting.

If a child's legally adopted, the people who adopt the child become the legal parents.