The Assisted Human Reproduction Act (the "AHRA"), enacted in 2004, provided the first legislative guidance on how to handle the issues of surrogacy and sperm and ova donation. The scope of the AHRA, being federal law, is restricted to legality and regulation of gamete donation, surrogacy, consent requirements, and reimbursement in relation to those activities. Parentage of any child born using assisted reproduction is governed by provincial law.
Other provinces adapted their legislation governing parentage to reflect the realities of many modern families. In Saskatchewan, prospective parents relying on gamete donation or surrogacy have been left with a great deal of legislative uncertainty—until now.
Bill 205, The Children's Law Act, 2020 (the "CLA 2020") incorporates and builds upon the changes seen in other provinces, making it one of the most advanced and progressive pieces of parentage legislation in the country. Itreceived Royal Assent from the Saskatchewan Legislature on March 16, 2020, and is set to come into force pending the approval of necessary regulations and the finalization of the new Federal Divorce Act. The changes to the Divorce Act are currently scheduled to come into force on March 1, 2021. Assuming there are no further delays, the CLA 2020 is expected to come into force soon after.
Zina Scott summarized some of the upcoming changes in her January 17, 2020 blog post. The following additional changes are relevant to intended parents relying on assisted reproduction, including same-sex, trans, and non-binary couples who wish to start families:
- New Language. The new definition of 'parent' is gender-neutral, recognizing various family configurations and gender identities.
- Parental Status. Part 7 of the CLA 2020 will govern parental status in the following scenarios:
a. Birth Parent. The 'birth parent' (the person who gives birth to the child) will be recognized as the child's parent unless they are a surrogate who has relinquished entitlement to parentage. If the birth parent is a single parent, then they can be recognized as the sole parent of the child.
b. Traditional Conception. Aside from the birth parent, absent an agreement or court order, parentage will usually be determined by presumption. If the child is conceived through intercourse, generally, the birth parent's spouse or the provider of the sperm will be presumed to be a parent for the child. Only one of the presumptions listed in the legislation is necessary to recognize someone as a parent. If there are multiple conflicting presumptions about who the child's parents are, a declaration may be necessary.
c. Assisted Reproduction. If the child is conceived through assisted reproduction (aside from surrogacy), then the birth parent and the spouse of the birth parent will usually be presumed to be the child's parents.
d. Multi-Parent Agreements. Two to four people can be considered the parents of a child where the prospective parents are parties to a pre-conception parentage agreement. Multi-parent agreements can be used in situations where a donor wants to retain some decision-making responsibility or parenting time, or where more than two adults wish to co-parent children together.
e. Surrogacy. Where:
- a child is conceived with the assistance of a surrogate;
- the surrogate has entered into a pre-conception agreement with the intended parent or parents;
- the child is conceived through assisted reproduction; and
- the surrogate relinquishes their entitlement to parentage after the child's birth;
then the intended parents under the surrogacy agreement will be recognized as the child's parents and legal decision-makers. Traditional surrogacy (where the child is conceived using surrogate's ova) and gestational surrogacy (where a donor ovum is used) are both recognized.
The CLA 2020 also provides the ability to seek declarations of parentage from the courts in situations of uncertainty.
3. Parentage Agreements. There are three types of agreements recognized under Part 7 of the CLA 2020:
a. Gamete Donation Agreements. Gamete donation agreements are generally not necessary under the new legislation, but the donor needs to provide a valid consent under the AHRA. An agreement may be recommended in some cases, even if not required, to determine parentage.
Sperm Donation can also occur through sexual intercourse, provided that the sperm donor and birth parent enter into an agreement prior to attempting conception. If the agreement is not executed prior to attempting conception, then conception through intercourse will not be considered a 'sperm donation'.
b. Parentage Agreements. Two to four parties may execute a parentage agreement to determine parentage of a child. Generally, the gamete providers and their spouses must be parties to the agreement. These agreements must be executed pre-conception. If a parentage agreement is validly executed and meets the requirements of the CLA 2020 and any regulations, then, if necessary, the child's birth certificate can be amended to record the parents under the agreement.
c. Surrogacy Agreements. The CLA 2020 provides that surrogacy agreements are not enforceable but serve as evidence of the parties' intentions. If the agreement is signed prior to conception and the surrogate renounces their rights following the child's birth, the intended parents will be the legal parents of the child as per the agreement. In the very rare case where a surrogate refuses to renounce their rights, the court would determine parentage of the child based on the child's best interests. The surrogacy agreement would be admissible as evidence before the court of the parties' pre-conception intentions.
While the CLA 2020 should provide greater flexibility to individuals as they structure and plan their families, the changes will also allow for complex and novel parental arrangements. Independent legal advice is a highly recommended component of any family planning under the new legislation and is a legal requirement in many instances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.