New concerns about legal parenthood

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Author: 
Monique Shebbeare
Source: 
Focus on Adoption magazine

"Under the law as it currently stands, a donor is the biological parent of any child conceived using his sperm. A donor potentially has all the responsibilities and rights of a parent, including the right to apply to a court for custody or access and the responsibility to pay child support if the intended parent applies for support."

As an adoptee who has reconnected with her birth family, the mother of a child conceived using donor insemination, and a lawyer with a particular interest in assisted reproduction, I have been following with interest the BC Supreme Court’s new and landmark decision on the rights of children conceived with the assistance of sperm donors. What is missing from the case – but critical to parents, donors and stability for the child – is the certainly about legal parenthood that adoptive parents can generally take for granted.

Prior to the Pratten decision (Pratten v. British Columbia (Attorney General), 2011 BCSC 656), children conceived in BC using donated sperm or eggs had no right to any information about anonymous donors, especially the donor’s identity. Olivia Pratten, a journalist who was conceived in BC using the sperm of an anonymous donor, successfully argued that the sections of the BC Adoption Act and regulations which provide a mechanism for adoptees to obtain information about their biological origins – including the right of adoptee when 19, to obtain a copy of their birth registration, subject to a veto for adoptions prior to 1996 or to a no-contact declaration for adoptions after 1996 – are discriminatory because they don’t provide equivalent rights to people who were conceived using the sperm (primarily) or eggs of a donor. The court found that donor offspring have the same need for information about their biological origins as adoptees. The court gave the BC government 15 months to enact legislation for donor offspring. The government has since filed an appeal of the Pratten decision.

What are the issues?

Assisted reproduction has a relatively brief history. Although donor sperm was first used at the end of the 19th century, donor egg technology dates back about 20 years. Because of the short history and privacy protections granted to donors and patients, people considering donor assistance often have little to draw on in terms of information about how the use of donor gametes plays itself out in a family’s life. However, public discussion and openness about assisted reproduction have been increasing. The use of donor sperm by parents who are open about their choice is one factor leading to more dialogue. The emerging voice of those conceived through assisted reproduction is also having an impact. As was the case in adoption, some individuals conceived with donor gametes are advocating change (as in the Pratten case), contending that the child’s interests should be given more attention.

The ongoing debate and growing public awareness of these issues will continue to have an impact on the field of assisted reproduction, and the adoption community will remain a source of support and information for families impacted by donor conception.

I have long thought that the reformed adoption law strikes the best balance possible between the needs and concerns of adopted children, birth parents and adoptive parents. When I became the parent of a donor child, I chose an “identity disclosure” donor so that my child will be able to get information about her biological father when she is an adult. But the flip side of the information issue in Pratten –- and the reason donors and intended parents may be wary of the Pratten decision –- are the questions of who is or are the legal parents of the children and what are the rights and responsibilities of donors.

The information sharing mechanisms of adoption only work because they exist along with the shift in legal parenthood which is the heart of adoption. No (or only rare) adoptive parents would adopt children in BC if their parental status was not certain. Adoptive parents have a level of certainty about their status as the only legal parents that parents of donor offspring may not always have. Anonymity has been the traditional answer to this.

Staying anonymous

One of the main reasons that intended parents choose anonymous sperm donors instead of known donors is that anonymity is currently the most simple and practical way to have some certainty that only the intended parent or parents will be recognized as the legal parents of the child. Under the law as it currently stands, a donor is the biological parent of any child conceived using his sperm. A donor potentially has all the responsibilities and rights of a parent, including the right to apply to a court for custody or access and the responsibility to pay child support if the intended parent applies for support. The intended parent(s) and a known donor may make an agreement that only the intended parent(s) will have the responsibilities and rights of parenthood, but such an agreement is technically not legally enforceable.

This is completely different than the reality in the adoption context. Under the BC Adoption Act, legal parenthood shifts from the biological parents to the adoptive parent(s). The law provides a legal mechanism for the biological parents to relinquish their legal parenthood by consenting to the adoption, and then the adoptive parent(s) agree to take on that responsibility. Once an adoption is complete, the adoptive parent(s) are the legal parents of the child, and the biological parents cease to be legal parents. This legal parenthood is reflected in all aspects of the law.

Although legally speaking there may be no difference between known and anonymous donors, in practice anonymity is a primary way that intended parents reach the same on-the-ground result as adoption. If a donor is anonymous, a single mother of a child born in British Columbia can declare that the father is unknown and no information about the father will appear on the birth registration. If the mother is in a relationship, the mother can include a co-parent on the registration. The intended mother, and her co-parent if she has one, will effectively be recognized as the child’s legal parent(s). There is also no dispute about parentage because the donor and the intended parent(s) don’t know each other.

Updating family law

Pratten didn’t deal with parentage, but law reform about information sharing has to be accompanied by law reform about parentage. The BC government’s White Paper on Family Relations Act Reform, which contains proposals for reform to many aspects of family law in B.C, suggests a few changes relating to donors including:

  • a statement that a birth mother is the mother of a child (i.e., even if she uses an egg donor)
  • a statement that a donor is not a parent “by reason only of donation”
  • a presumption that the spouse of the birth mother of a donor child is presumed to be the child’s other parent
  • the possibility of more than two parents if the there is an agreement with the donor that the birth mother, her spouse, and the donor will all be parents.

It is not clear whether these changes will be brought in at all or, if so, when. They would go a long way to giving parents and donors, whether known or anonymous, more certainty about legal parentage. They would provide some comfort to donors about the implications of any law reform providing for more open information disclosure. They would encourage more people to consider using known donors or being known donors. They would provide donor offspring with more predictability and stability of the family unit in childhood.

However, the changes, even if made, could still leave a single mother, in particular, open to an argument that a known donor was not “only” a donor if, for example, he has contact with the child. It would be preferable to have a simple form for a donor to sign to make it clear that the donor will not be a legal parent if that is the intention. Both before and after any change to the law, it will be important for parent(s) and known donors to make agreements setting out their intentions and expectations. As with openness agreements in adoption, these agreements can be creative and tailored to the needs of the specific family.

Monique Shebbeare is a family and estate planning lawyer with a special interest in assisted reproduction. She practices with Heritage Law in Vancouver where she assists clients with donor and surrogacy agreements, marriage and cohabitation agreements, wills, other estate planning issues, and estate administration. Visit www.bcheritagelaw.com/monique-shebbeare-lawyer.com