Baby Steps: Assisted Reproduction Technology and Fertility Law in Canada - PowerPoint Presentation

Slide1

Baby Steps: Assisted Reproduction Technology and Fertility Law in Canada

Michelle Kinney, October 2016

ABA Section of Family Law: The Commonwealth of ART

Drawn in part from

Baby Steps II: Assisted Reproductive Technology and the B.C. Family Law Act

b

y

barbara findlay

QC, Zara Suleman, Lynda Cassels and Michelle Kinney

Credit to Sara Cohen

Slide2

Overview of PresentationFederal law respecting Assisted Reproduction British Columbia Family Law Act Part 3: ParentageOverview of other provincesLooking forward:

forseeable

issues and challenges

Slide3

Federal Assisted Human Reproduction ActAssisted reproduction has been regulated in Canada since 2004, when the federal government enacted the Assisted Human Reproduction Act, which:

Prohibited

some activities such as human

cloning and

payment for

genetic

material and surrogacy services

Regulated

others, including sperm and egg donation and

surrogacy

Parts of the AHRA were struck down as ultra vires the federal government in 2010 but the prohibitions remain.

The AHRA did not deal with the legal status or legal parentage with respect to children born through assisted reproduction.

Slide4

Federal Assisted Human Reproduction Act Prohibited (ss. 5 – 8):

The

purchase,

advertising or payment for donated genetic materials i.e. sperm,

eggs, embryos

Paying for surrogacy services

Paying someone to arrange surrogacy services, accepting payment to arrange surrogacy services, or advertising to arrange such services

U

se of genetic material without written consent of donor – s. 8

Use of genetic material from a minor (under 18) unless intention to be used by donor – s. 9

Breach of s. 5 – 7 and 9 is

a criminal offence, punishable on indictment by a maximum $500,000 fine and 10 years in prison

Breach of any other provision (e.g. consent) – lesser penalties

Slide5

AHRA: Expenses for donors and surrogatesNo reimbursement for expenses incurred by a surrogate or donor, except

in accordance with the

regulations (s.12)

section

12 – not in

force and no regulations

In practice, reimbursement commonly made for out-of-pocket and receipted costs directly related to the donation or surrogacy (Health Canada):

medical expenses, travel to medical appointments

maternity clothes

l

oss of work wages if doctor certifies bedrest

medically necessary

What

about other costs? Examples:

legal

fees

c

hildcare for

other children of surrogate

house-keeping

costs due to bedrest

nutritional

supplements

Slide6

1st Prosecution under the AHRALeia Picard, Canadian Fertility Consultants (CFC) in Ontario, was convicted on three counts in the first prosecution

under

the Assisted Human Reproduction

Act (charged laid in 2013)

She pled guilty to:

purchasing eggs,

paying

surrogates and

taking

money to arrange

surrogacies

Picard and CFC were fined $60,000 in total

Slide7

The Federal Semen RegulationsThe Processing and Distribution of Semen for Assisted Conception Regulations

came into effect in 1996 under the

Food and Drugs Act

set out health and safety standard requirements for semen.

Must be frozen and quarantined for 6 months and meet sexually transmitted infections testing.

Exception: where a person is seeking insemination of semen from their spouse or sexual partner.

The

only sperm facility is in Ontario. All other Canadian facilities closed after the AHRA came into effect.

Slide8

Sperm ChallengesDifficult to secure sperm in Canada: Significant bar to using a known donor in a clinic setting due to the

sperm

regs

and the lack of

facilities

to process sperm

Due to the prohibition against the payment or purchase of sperm, there is a sperm shortage in Canada.

Yet…. It is not illegal under the AHRA to purchase sperm outside of Canada: most sperm used comes from US/ outside CND

Canada’s laws mean that Canada loses the ability to monitor the sperm as it could if it originated in Canada

Slide9

AHRA: Regulations ContemplatedHealth Canada recently (Sept 30, 2016) released their intention to introduce regulations to the AHRA to:update the regulations for the safety of donor semen (and move the Semen Regs

under the AHRA)

develop

regulations for testing and screening the donors of ova,

and

for tracing donations for the purposes of monitoring adverse events and recalls; and

clarify eligible reimbursable expenses for parties involved in surrogacy arrangements, and semen and ova donation.

I

nspectors

to administer and enforce

the legislation

Stakeholders will be given an opportunity to provide feedback on the proposals.

Slide10

Who owns Genetic Material?JCM v ANA 2012 BCSC 584 Lesbian couple purchased sperm from anonymous donor, froze 13 strawsUpon separation, one wanted to use straws; other wanted straws destroyedHeld: sperm straws = property and were divided between the parties

C.C. v A.W. 2005 ABQB 290

AW provided sperm for creation of embryos used by C.C.; some remained frozen

AW did not want further embryos released to C.C.

Held: embryos = property owned by CC, AW had gifted sperm unreservedly

Lam

v. UBC

2015 BCCA

2 (class action case)

M

en stored sperm for own future use, storage system failed

Held:

f

rozen sperm = property of men who provided it for limited

purposes of

Warehouse Lien Act

Slide11

BC Court of Appeal: cautionary approach“. . . There are many situations in which the definition of property as it relates to human sperm arises. It is therefore important to ensure that defining human sperm as property on the facts of this case does not lead to the application of the same definition in very different circumstances. Defining human sperm as property may bring with it a host of other legal rights and issues. Uncertainty exists with respect to the contexts in which human sperm could be considered property, and it is necessary to carefully circumscribe the limitations of the definition in this case.”

Madam

Justice Bennett,

Lam v. UBC

@

para

93

Slide12

The lack of legislation in Canada respecting legal parentage where assisted reproduction is used created a gap in the law and lack of predictability. Couples using assisted reproduction experienced difficulties with respect to being recognized as parents to their children– required to adopt their child or go to court to seek a declaration of parentage.Case law was filling this legal void on an ad hoc basis.

Gap in the

Law

Slide13

Uniform Child Status ActUniform Law Conference of Canada - uniform statutes recommended for enactment by relevant governmentsUniform Child Status Act - 2010Replaced Uniform Child Status Act of 1992Recommended provisions re:Determination of parentage – ART and non- ART context

Use of declaratory orders

Treatment of

extraprovincial

orders

Application to children born outside Canada

http

://

www.ulcc.ca/en/uniform-acts-new-order/current-uniform-acts/637-child-status/1495-uniform-child-status-act

BC first province to enact similar legislation - FLA largely follows the intention of the Uniform Act provisions, with some exceptions where BC went further (genetic connection not necessary, administrative registration regime)

Slide14

Before the BC Family Law Act came into force in 2013, BC legislation assumed all children are conceived through sexual intercourse, and every child has a mother and father.The Law and Equity Act, s.61 established legal parentage, providing that “a child was the child of his of her natural parents” (repealed in 2013).

FLA

provides a comprehensive scheme to determine a child’s legal parents, including in situations where assisted reproductive technology (ART) is used

.

Before the BC Family Law Act (FLA)

Slide15

Family Law Act: legal parentage established for all purposes

A

determination of parentage under the Part 3 of the

FLA

is a determination of parentage

for all purposes

in British

Columbia

Legal parentage is important because:

Establishes a child’s identity, e.g., family name, family relationships, cultural heritage

Determines inheritance rights, e.g., who inherits when a parent dies without a will

Determines who is presumed to be a child’s guardian under the

Family Law Act

(with limitations – s. 39)

Imposes child support obligations (although persons who are not legal parents, such as step-parents, can also have support obligations)

In the ART context,

intention to parent

now trumps genetic connection to the child in determining who is the legal parent.

Slide16

Family Law Act (BC) SectionsART-conceived childrenNon-ART-conceived children

Where the parties require the assistance of donors for human reproductive genetic materials, embryo and/or the assistance of surrogates and /or fertility treatments

If ART-conceived children, the relevant sections of the FLA will be:

S. 24 Donor not automatically parent

S. 27 Parentage if assisted reproduction

S. 28 Parentage if assisted reproduction after death

S. 29 Parentage if surrogacy arrangement

S. 30 Parentage if other arrangement

Where the parties have

sexual intercourse to conceive their children without any assistance of donors, surrogates or insemination or transplanting services at fertility clinics

If Non-ART conceived children, the relevant sections of the FLA will be:

S. 26 Parentage if no assisted reproduction

Slide17

Key terms – FLA s. 20(1) Birth motherThe person who gives birth to, or is delivered of, a childApplies whether or not birth mother genetically linked to child and whether or not she intends to raise childDefinition consistent with

Vital Statistics Act

Donor

Includes sperm

and egg donors

A

pplies only if person provides genetic material for purpose other than their own reproductive use

Intended parent(s)

Person (or 2 persons married or in marriage-like relationship) who intend to be parents using ART and make written agreement with birth mother

Slide18

Parentage where sexual intercourseFLA Section 26(1) provides that parents of a child not conceived by way of ART are: the birth mother and

the

biological

father

Presumptions

of paternity for a child born to a woman in a relationship with a

man include: was in a relationship with the mother at the time of conception; acknowledged the child as their own (s. 26(2))

s

. 26(2) presumptions do not apply if more than one person can

claim parentage

If

paternity is disputed,

DNA/ paternity

testing may be

used

TAKE AWAY:

where assisted reproduction is not used, parentage is determined under this section despite any other intention

Slide19

Status of birth mother and her partner where ART used(s.27)Birth mother = parent whether or not they provided the egg or embryo

Partner of birth mother presumed

to be the

other parent

W

hether

or not that person provided genetic

material

Exception: if partner proves they did

not

consent to be a parent, or withdrew consent

prior to conception

No agreement or declaration of parentage required

EXCEPTION

:

s. 27 does NOT

apply if the birth qualifies as a surrogacy under s. 29

TAKE AWAY

:

Unless surrogacy is used, the birth mother and partner (heterosexual, lesbian, transgendered, transsexual

etc

) are the legal parents of the child, generally.

Slide20

Status of donor- sperm donor or egg donor (s.24)Third-party donors of genetic materials are not parents solely by virtue of the donation of genetic material A court is restricted from declaring a person a parent by reason only of the donation

Exception: Section 30 - Additional

parents

possible where donor may also be a parent by pre-conception agreement

TAKE AWAYS:

the sperm or egg donor is not a parent, generally

(Note: Under the Family Law Act, a person who is not a parent, such as a step-parent, cannot become a parent by virtue of taking on a parenting role)

Slide21

Surrogacy (s.29)Process for intended parents to become the child’s parents, with the assistance of a birth mother (who is not to be a parent). No genetic connection is required.. Pre- Conception Requirement:Written agreement signed BEFORE conception providing that on the child’s birth:

Birth mother will not be a parent

Birth mother will surrender the child to the intended parent(s)

The intended parent(s) will be the parent(s) of the child

Post-birth requirement:

Intended parent(s) take the child into their

care (declaration); and

Surrogate consents in

writing (declaration)

to surrender the child to the intended

parents

Vital

Statistic Agency will

register

the intended parents as the only

parents

The

pre-conception agreement NOT = consent to relinquish the child

But if the surrogate fails to surrender the child, the agreement may be used in court as evidence of parties intentions with respect to

parentage

TAKE

AWAY:

intended parents become the only legal parents after the birth of the child where there is a pre-conception surrogacy agreement and the surrogate /birth mother relinquishes the child

post-birth. No declaration of parentage needed.

Slide22

Additional parents (s. 30)If ART used, there can be more than two legal parents if:Written agreement BEFORE conception that the birth mother and other specified parties to the agreement will all be parentsParties can include:

Intended parents and birth mother

I.E.: Gay

male couple and their female friend who will carry the child

Birth mother, their partner and donor

I.E.: Lesbian

couple and their male friend who will provide the sperm

On the birth of the child all parties will be parents unless one of the parties withdraws or dies before conception

TAKE AWAY: Three

parent

(or more) family

possible IF

agreement in writing

BEFORE conception –

all

will be parents

Question: How many parents can a child have?

Slide23

Posthumous conception (s.28)Deceased presumed to be parent of a child conceived after the parent’ s death where:The deceased provided the genetic material before death for own use The deceased consented

to be a parent of a posthumously-conceived child

and

the

deceased’s partner at the time of death is the other parent

,

unless

proven that the deceased withdrew the consent before death

Slide24

Declaration of parentage (s.31)Specific authority for judges to make declarations of parentage (s. 31)Where there is “a dispute or any uncertainty” about parentage the Supreme Court may make an order declaring a person a parentFamily Law Act (Re) 2016 BCSC 22:

L

egal opinion that Quebec wouldn’t recognize BC birth certificate found to be “uncertainty” warranting a declaration

Slide25

Registering the birth as parentsAdministrative regime: so long as the parties meet the requirements set out in the law, the parties can register as the parents without the need for a court declaration of parentageVital Statistics Agency (VSA) is the gate-keeper VSA amended birth registration and other forms to accommodate the range of parentage options availableWhere

ART used, parents

must contact

VSA to

obtain a paper birth registration form–

cannot

register

the

birth

online

Statutory declarations used to verify parentage where additional parents, surrogacy, or posthumous conception

Slide26

BC Parentage cheat sheetParentage where sexual intercourse: biological parents are the child’s legal parentsParentage where assisted reproduction (general rules): Donor is not a parent (donor of genetic materials such as sperm or egg)

Parents are the birth mother and her partner

Surrogate is not a parent; intended parents are the parents- must be a written agreement prior to conception and after birth

There can be more than two parents in certain circumstances --must be a written agreement prior to conception

A person can become a parent after their death in certain circumstances- must be a

written

agreement prior

to

conception

Intention to parent trumps genetic connection

Written agreements a must for surrogacy, multiple parents, post-death conception

Birth registration where assisted reproduction- administrative regime

Slide27

BUT…each province is different**Don’t assume intention-based or logicalFocus on:Ontario Alberta (similar to Nova Scotia)Quebec: surrogacy is not legal

**Thank you and credit to Sara Cohen LL.B. Fertility Law Canada for her contribution to the slides

Slide28

Ways in Which Provinces Vary**Legal Differences:How to become a parent: AdoptionDeclaration of parentageStatutory declaration

Administrative regime

Donor as a potential parent?

Presumptions of parentage

How many legal parents?

Must there be a genetic connection between the parent(s) and the child?

Bureaucratic Differences:

How quickly and efficiently wheels of bureaucracy turn

Requirement for DNA testing

Slide29

Ways in Which Provinces All the Same**None statutorily require independent legal advice for a surrogate (although Ontario’s proposed law will for surrogacy)None statutorily require counselling, etc.None distinguish between traditional surrogacy and gestational surrogacyA surrogate is the legal parent without a further step post-birth

Slide30

Legislation in other Canadian Jurisdictions** Alberta and Nova ScotiaAlberta (Family Law Act,

SA, 2003, c.

F-4.5

)

and

Nova

Scotia (

Birth Registration Regulations)

N.S.

Reg

390/2007

Both only allow two parent families (Alberta by statute, NS unclear)

At least one genetic connection required

No presumption of parentage for donors

Application may be made that intended parents are the parents and a surrogate is not a parent of a child born as a result of assisted reproduction

Neither require DNA evidence

Same-sex friendly

Both can proceed by way of desk order (Alberta quite a bit faster than NS) and declarations can be obtained

Slide31

Quebec**Civil Code Article. 541 “Any agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null.”

Surrogacies do occur in Quebec - parents MUST adopt

The placement order occurs within 5 weeks

Adoption takes 3-6 months to finalize

Many

lawyers across the country include a no travel to Quebec provision in surrogacy contracts.

31

Slide32

Ontario Proposed Bill 28: All Families Are Equal Act**(As per the News Release Sept 29, 2016)

Rules of Legal Parentage

T

he

parents are the birth parent and the birth parent's partner, if any, at the time of the child's conception. No court order

required

.

Surrogacy

The intended parents of a child born to surrogate would be recognized without a court order if the following conditions are met:

The surrogate and the intended parent(s) received

independent legal advice

and entered into a written pre-conception surrogacy agreement.

The surrogate provided written consent to give up her parental status both before conception and seven days after the birth of the child.

Clarifying the Process for Recognition of Parentage Agreements

Under

a simplified process, up to four people would be recognized as the parents of a child, without a court order, if all parties entered into a written pre-conception agreement to be parents of the child together. The birth parent would be required to be one of the parties to the agreement.

Posthumous Conception

A court could grant a declaration of parental status to a deceased person in relation to a child conceived after their death.

The posthumously conceived child could inherit and seek support from their deceased parent's estate, if the child is born within three years of their deceased parent's death.

Slide33

Ontario Proposed Bill 28: All Families Are Equal ActDifferences and Issues

The surrogate has 7 days before she is to relinquish the child, during which time she has joint decision-making with the intended parents

Independent legal advice is required for surrogacy

A

dministrative

regime to register a child

including in surrogacy.

A declaration of parentage is no longer needed through the court (aligns with BC

)

Surrogacy agreements are unenforceable and disputes are to be based on the BIOC of the child.

Sperm donation can be provided through sex- the ability to contract out of parenthood?

Additional parents are allowed- limited to 4

Slide34

Looking forward: Foreseeable issuesLocation, location! : Jurisdictional differences and challengesSex as the defining line re the application of the law: different treatment for similar families? Charter challenge? Administrative registration vs. court oversightRight to know re sperm donor and adult children conceived through ART?

Sperm and egg shortages

Known vs unknown donors

Transgender parents: birth registration and access to services

Should the prohibition on paying be changed?

How many parents?

Slide35

Fertility Law BChttp://www.fertilitylawbc.com/

Baby

Steps

: Assisted

Reproductive Technologies and the BC Family Law

Act

http://www.barbarafindlay.com/uploads/9/9/6/7/9967848/

baby_steps.pdf

Baby Steps II: Assisted Reproductive Technologies and the BC Family Law Act (course materials and to be posted on

www.fertilitylawbc.com

More

Info/ Questions

?