In BC, there is a bright line on parentage between children conceived through sexual intercourse and those conceived through assisted reproduction (anything other than sexual intercourse, for example donor insemination, IVF). In BC, the Family Law Act says if a child is conceived through assisted reproduction, a donor is not a legal parent unless they agree in writing before conception to be a parent. However, where a child is conceived through sexual intercourse, the birth mother and the biological father are the legal parents. Their intention at the time of conception does not matter. But could it in the future?
Ontario law, and a recent Ontario case, takes a different approach. In M.R.R. v. J.M., 2017 ONSC 2655, the court declared that a man who was the biological father of a child conceived through sexual intercourse was not the legal parent because the man and the child’s mother had a clear, although unwritten, agreement before the child was conceived that he would be a sperm donor only and not a parent. The case came to court because the mother changed her mind after the child’s birth and wanted child support from the man.
Ontario’s Children’s Law Reform Act (the CLRA) was reformed effective 2017 to shift the focus from biology toward pre-conception intention in its rules about parentage – and in so doing to better reflect the diversity of families and protect the security of children regardless of their parents’ sexual orientation, gender identity, use of assisted reproduction or family composition. When it comes to children conceived through sexual intercourse, Ontario law approaches things different than BC. In Ontario, if a man and woman make a written agreement before conception that the man will not be a legal parent of the child born using his sperm through sexual intercourse, then he won’t be a parent.
This case didn’t fit the Ontario law because the agreement before conception was unwritten. However, the court used its power to make a parentage declaration through a court process to uphold the unwritten intention before conception that the man was not a legal parent – uphold the law’s general principle of looking at pre-conception intentions. The court said that any change of intentions after birth should not change the outcome, and that a court should not look at the best interests of the child in deciding who is a parent as this would create uncertainty and contradict the law’s intention to create certainty about family units based on pre-conception intention.
“162 The amendments to the CLRA with respect to parentage move the focus away from biology toward the preconception intentions of the parties. The legislature, in enacting the amendments to the CLRA, has signalled its support for parties to determine a child’s family unit regardless of the gender of the parents and, with some limitations, regardless of the number of parents. A family intentionally comprised of one parent is no less a child’s family than one comprised of two or more parents.”
In BC, for now, if the people involved agree that a man who provides sperm is not going to be a parent, the child should be conceived using home insemination, insemination at a clinic, IVF or other assisted reproduction – not sexual intercourse – and ideally with a written sperm donor agreement to be sure everyone is on the same page.