Monday, September 20, 2010

British Columbia Attorney General's White Paper proposes explicit recognition of three parents

Hats off to New Jersey lawyer Bill Singer for alerting me to the article in yesterday's Vancouver Sun on an aspect of family law reform under consideration in British Columbia. While the article focuses largely on the possibility of a child having three legal parents, the White Paper released by the province's Attorney General in July, proposing a complete overall of the Family Law Act, is much broader than that. The new provisions would establish legal parentage in a variety of situations relevant to gay men and lesbians having children through assisted conception.

Here's a summary of the relevant parentage provisions:
  • When a woman bears a child through assisted conception (but not surrogacy), her partner -- married or unmarried, same-sex or different-sex -- is presumed the child's other parent. The partner can overcome the presumption by proving that s/he did not consent to be the child's parent before the assisted conception took place.
  • Sperm and egg donors are not parents.
  • A woman who give birth is a parent, regardless of whether she is genetically related to the child.
  • A birth mother who agrees to act as a surrogate can sign an agreement with the intended parent so stating before conception. After birth she can (but cannot be forced to) turn the child over to the intended parents and give her written consent that they are the child's parents. The intended parents are then the child's legal parents from birth.
  • A donor of sperm or eggs, or a surrogate mother, can make a written agreement prior to assisted conception that the child will have three parents. In the case of a sperm or egg donor, the parents would be the donor, the birth mother, and the birth mother's partner. In the case of a surrogate mother, the parents would be the intended parents and the birth mother.

This White Paper is unusual in its explicit attention to the possibility of a child having more than two parents. Quebec has had a statute since 2002 that makes a woman's partner the legal parent of a child born through assisted conception, but it does not allow for a child to have three legal parents. (On the other hand, Quebec allows "assisted conception" to include conception through sexual intercourse where the man and the woman agree in advance that the man will not be the child's legal parent; the British Columbia proposal, like all other statutes I know, sharply differentiates parental status based on method of conception.) The District of Columbia statute does not explicitly state that a child can have three parents, but it does provide that a sperm donor is a parent if the mother and donor have a written agreement saying so, and it also provides that the birth mother and her partner are the child's parents if they consent in writing, so the statute is best read as allowing for three parents if all agreed so state in writing.

I really like the proposal's treatment of surrogacy, and here I know I diverge from some colleagues I highly respect. Surrogacy is permitted, but a birth mother can change her mind until after the child is born. And this is true even if she is a "gestational" surrogate -- one who is not genetically related to the child. I believe that caring for a fetus in utero is a form of parenting and the law should recognize that. The intended parents, however, cannot change their minds once they have signed the surrogacy contract. Once the child is born and the birth mother signs away her rights to the intended parents, they are the parents from the moment of the child's birth. This way the surrogate need not fear that she will be required a child should the intended parents later change their minds.

I know many people support strict enforcement of surrogacy contracts, but I like the British Columbia proposal for reasons other than respect for gestating a child. Surrogacy is best practiced by agencies that carefully screen and counsel potential surrogates; those careful practices reduce to practically zero the possibility that the woman bearing the child will change her mind. All the incentives should go in that direction, and the BC proposal does that.

1 comment:

drudolph said...

There was also this Ontario case a few years back in which the court said three people could be parents--bio mom, bio dad, and bio mom's partner. And this story about a Toronto trio trying to make parenting arrangements themselves.