Parentage committee starts discussion on surrogacy and independent legal advice
August 18, 2022
BY Alison Wilkinson
This month, the Parentage Law Reform Project Committee focused on two issues: surrogacy and independent legal advice.
Should conception by sexual intercourse be permitted for traditional surrogacy?
Section 29 of the Family Law Act governs surrogacy. Surrogacy is when a person carries a child for someone else. There are two kinds of surrogacy. The first is ‘traditional’ surrogacy. In this case, the surrogate carries the child, but also donates an egg (i.e., is genetically related to the child). The second is ‘gestational’ surrogacy. In this case, the surrogate carries the child but is not genetically related.
In BC, the legislation allows for both types of surrogacy if assisted conception is used. In this meeting, the Committee discussed whether the legislation should permit conception by sexual intercourse for traditional surrogacy.
A main point of concern was the vulnerable position of surrogates. Surrogacy may occur in situations where there is a power imbalance. Using sexual intercourse to conceive is significantly less expensive than paying for assisted conception through a clinic. For this reason, a surrogate may feel pressured by intended parents into using sexual intercourse to conceive.
The Committee also considered equal treatment. In provinces like Ontario, the legislation allows for sperm donation by sexual intercourse. The Committee discussed whether there is a reason to permit sperm donation by sexual intercourse but not egg donation.
Should part 3 of the Family Law Act require independent legal advice?
Next the Committee turned its attention to independent legal advice. Independent legal advice is when parties to a legal issue all speak to a separate lawyer. This is important to make sure that all parties understand their independent rights and obligations in a particular situation.
In part 3 of the Family Law Act, there are several groups who could potentially benefit from independent legal advice. In other provinces like Saskatchewan and Manitoba, independent legal advice is required for surrogates and intended parents. However, it is not required for other contractual situations like multiparent configurations or sperm donation by sexual intercourse.
The Committee considered whether donors, surrogates, intended parents, and sperm donors by sexual intercourse should obtain independent legal advice given their unique vulnerabilities. The Committee considered issues such as the time and cost associated with independent legal advice, as well as the likelihood that someone may not get legal advice and fail to meet the legislative requirement.
The goal of these discussions is to develop tentative recommendations to reform part 3 for a public consultation to be held later in the life of the project.
