In last week’s blog, we spoke about the legal side of IVF treatment. This blog threw up some interesting side questions. Questions like how exactly is parentage determined in British Columbia?
While it may seem simple, determining parentage can prove a sometimes-complex issue. In fact, the BC Family Law Act goes into great detail to cover every possible parenting scenario. Establishing who the legal parents of a child are is vital to establishing a child’s identity. It has ramifications on family name, family relationships and cultural heritage. Inheritance rights also flow directly from the parent-child relationship.
Who is a Parent?
Under BC’s Family Law act, there are several methods to become a parent:
- Sexual intercourse
- Assisted reproduction (IVF treatment, sperm or egg donation, surrogacy)
Let’s take a look at the legalities of each scenario.
The birth mother, after carrying the child to birth, is the legal mother at birth according to the Family Law Act. The man who impregnated the woman following sex if the biological father. A male is presumed 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];
(c)he married the child's birth mother after the child's birth and acknowledges that he is the father;
(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.
Please Note: If more than one person may be presumed to be a child's biological father, no presumption of paternity may be made. If a man disputes his status as a biological parent the issue is typically resolved via a DNA test.
The law states that if a child is born through assisted reproduction methods, like IVF treatment, the person who was married to the birth mother, or living together in a common-law relationship, when she became pregnant is the child’s parent. However, this law doesn’t apply in two very clear scenarios:
- The person does not agree to be the child’s parent, or
- The person changed their mind about being the child’s parent
If you donate your sperm, embryo or an egg, it doesn’t automatically give you parenting rights. It’s at this point the law considers intention when defining parentage. A sperm, egg or embryo donor can be a legal parent in the following scenarios:
- The intended mother and the donor write an agreement in advance of the pregnancy clearly stating the donor will be a parent.
- A woman acting as a surrogate enters into an agreement with the intended parents granting her parenting rights.
The rules surrounding adoption are much less complex. Simply put, if a child is legally adopted, the couple or individual who adopts the child becomes the legal parent.
Talk to the Experts
If you have any questions about establishing parentage in BC, the expert team at Westside is standing by to help. Contact us and we’ll be happy to assist.