basics of fertility lawLet’s start with the lay of the land. From the point of view of BC law, assisted reproduction is such things as:

  • Getting pregnant using home insemination with a friend as the sperm donor
  • In vitro fertilization (IVF), where conception of the embryo takes place in a lab and the embryo is then transferred to a woman’s uterus
  • Artificial insemination (intrauterine insemination/IUI) with a spouse’s sperm to increase the change of pregnancy
  • Having a child with the help of a surrogate who will carry the fetus until birth
  • Conceiving a child with the help of donated sperm, eggs or embryos

Assisted reproduction is not sexual intercourse. In fact, BC’s Family Law Act specifically defines assisted reproduction as “a method of conceiving a child other than by sexual intercourse”.

Many different people use assisted reproduction: same-sex couples, heterosexual couples, single people wanting to parent, and couples where a partner is transgender.

There are both federal and provincial laws about assisted reproduction. The federal laws essentially focus on the ethics and safety of assisted reproduction: what we are and are not allowed to do in Canada. Provincial law focuses more on parentage: who the legal parents are of the children born using assisted reproduction. And of course there are other laws and regulations governing the professionals and clinics who provide assisted reproduction services.

The federal side in a nutshell

The Assisted Human Reproduction Act (Canada) is the primary federal legislation.  The most important aspects of the current AHRA are:

1. Prohibition on certain activities – There are just certain things that cannot be done in Canada. For example, it is against the law to create a human clone, chimera or hybrid. It is also against the law, for the purpose of creating a human being, to perform any procedure that could increase the probability that an embryo will be of a particular sex.

2. Prohibition on paying surrogates and age requirement for surrogates – In Canada, a surrogate must be 21 years of age. It is illegal to pay or offer to pay consideration (payment for services) to a surrogate mother. It is also illegal to accept payment for arranging the services of a surrogate mother. As you will see in the section on surrogacy, it is legal to reimburse a surrogate for her expenses.

3. Prohibition on paying sperm, egg and embryo donors – In Canada, it is illegal to purchase, offer to purchase or advertise for the purchase of sperm or eggs from a donor (or a person acting on behalf of a donor). It is also illegal to purchase or sell (or offer or advertise to) an in vitro embryo. The Reimbursment Regulations apply to donors as well as surrogates, and each category has different restrictions.

4. Consent requirements for use of donor sperm, eggs and embryos – In Canada, donor sperm and eggs can only be used to create an embryo if the donor gave specific written consent to a particular use (for example, for the recipient to conceive and raise a child). Similarly, you can only make use of an embryo if the donor gave specific written consent for a particular use. Special regulations set out the specifics of the consent that is needed.

The federal government also has specific regulations relating to semen and eggs used in assisted reproduction. This provides more flexibility with respect to the process and screening requirements for people who are using known donors  through a fertility clinic.

Reimbursement Regulations:

There are regulations, Reimbursement Related to Assisted Human Reproduction Regulations, that govern what can be reimbursed to surrogates or donors. These set out a process to claim reimbursements. Some reimbursements require a medical referral from doctor, such as for lost wages for the surrogate. A Declaration Form and receipts are required.

Health Canada has developed a Guidance Document on the Reimbursement Regulations that describes the rules and includes same Declaration Forms to make reimbursement claims.

The provincial side in a nutshell

BC’s Family Law Act, which came into force in 2013, has a comprehensive set of rules about who the parents are of children in BC.

Totally different rules apply depending on whether a child is conceived through sexual intercourse or assisted reproduction.

If a child is conceived through sexual intercourse, the parents are the birth mother and the biological father. So, going back to our example of getting pregnant with the help of a friend as the sperm donor. If you do home insemination or go to a clinic, that is assisted reproduction. Sleeping with a friend on the agreement between you that he will not be the father is not assisted reproduction – he is not a donor, legally he is a parent.

For children conceived through assisted reproduction, parentage is much more about the intention of the people involved:

  • Generally speaking, regardless of who provided the genetic material the embryo is made of, the parents of a child born with assisted reproduction will be the birth mother and a person who was married to, or in a marriage-like relationship with, the birth mother (I’ll call them the “spouse”) when the child was conceived, unless there is proof that the spouse did not consent to be a parent or they withdrew their consent before conception.
  • So where a couple uses their own egg and sperm, but needs IVF or artificial insemination to conceive, they are both parents just as they would have been if they had been able to conceive naturally.
  • Where there is a donor involved (either a sperm donor, egg donor or embryo donor) the default rule is that the donor will not be a parent.
  • There are special rules that apply to surrogacy. Essentially, a proper written surrogacy agreement must be made before conception and the surrogate must also surrender the child and give additional consent after birth. Then only the intended parents, and not the surrogate, are parents.
  • However, we can now have more than two parents in BC. If a surrogate and/or donor make an agreement before conception with the parents that they will also be legal parents, then they can be.

Why the distinction between sexual intercourse and assisted reproduction? Essentially, this provides a bright line between the different set of rules. The law has evolved over time to ensure that both parents who help conceive a child naturally take responsibility for that child and are recognized as the parents, and it would cause confusion if either person could claim down the road that the man was just a donor. With assisted reproduction, because an active decision needs to be made to conceive a child, there is the opportunity beforehand to think through decisions about who will be the legal parents. But not everyone agrees with the bright line of sexual intercourse vs assisted reproduction. For some, the line seems artificial and sometimes, just like with assisted reproduction, people want to be able to decide for themselves who the legal parents will be. So wait and see how the law evolves on this front.

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