BC’s new Family Law Act will – for the first time in BC history – set rules about parentage when children are conceived using assisted reproduction (any form of conception other than sexual intercourse), including important guidelines for determining legal parentage where a surrogate is involved. Although the Act was passed November 24, 2011, it is largely not in force yet, and the government estimates it will take 12 to 18 months to implement the law.
The surrogacy rules will apply if the potential surrogate and intended parent(s) enter into an agreement prior to conception for the surrogate to be the birth mother, for the surrogate to surrender the child at birth and not be a parent, and for the intended parent(s) to become the parent(s) when the child is born.
When the child is born, the intended parent(s) will be the parent(s) if:
1. No one withdraws from the agreement prior to birth,
2. When the child is born, the surrogate gives written consent to surrender the child to the intended parent(s), and
3. The intended parent(s) take the child into their care.
The surrogacy agreement is not consent, but can be used as evidence of intentions if there is ever a dispute after the child is born.
If the surrogate and the intended parent(s) make an agreement prior to conception that they will parent together, they will all be the legal parents of the child born. The agreement is deemed to be revoked if a party withdraws from the agreement or dies before the child is born. This creates the potential for a child to have more than 2 legal parents.
Note that the new rules do not distinguish between a “gestational surrogacy” where the surrogate carries the child but is not biologically related to the child and a “traditional surrogacy” where the surrogate is also the biological mother.
If there is a dispute or any uncertainty about whether or not a person is a parent, a court application can be made to determine parentage.
The new Act also amends the Vital Statistics Act so that the child’s statement of birth must be completed by the parents (as defined above), and the birth certificate subsequently issued must not show that the child was born as a result of assisted reproduction.