Surrogacy is one option for people who want to have children but could not otherwise. BC’s new Family Law Act now has written rules to clarify who the parents are when a surrogate helps a couple or individual have a child in BC.
Surrogates may be used where a woman cannot carry a child herself, perhaps due to cancer or another medical condition. Surrogates are also used by gay couples so that there can be a biological connection to the child. Because the basic assumption of the law is that a woman who gives birth to a child is the legal mother and the biological father is the legal father, special rules are needed when the woman who carries and gives birth to a child is not intended to be the legal parent.
The surrogacy rules apply if the potential surrogate and intended parent(s) enter into an agreement prior to conception: i) for the surrogate to be the birth mother, ii) for the surrogate to surrender the child at birth and not be a parent, and iii) 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.
That being said, it is possible for everyone to agree that the surrogate will also be a parent. 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.
The 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 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.
The Family Law Act came into force March 18, 2013.