Family law is constantly evolving. It changes as the Society changes. The definition of family has significantly changed over the years and the law of parentage has changed as well.
A child can now have many parents as opposed to the traditional two parents. Modern medical technological advances have led to special techniques for bringing about reproduction of children through means other than sexual intercourse. This has given rise to complex issues in family law eg.
FERTILITY FAMILY LAW SCENARIOS
Key players: 3 adults
Key players: 3 adults
Key players: 3 adults
Key players: 4 adults
Key players: 6 adults
Key players: 6 adults
As can be seen from the above scenarios, 6 or even more adults could play a role in the making of a child and this has important implications on child custody, access, child support, and parentage determinations in family law.
ARTIFICIAL INSEMINATION
This is the impregnation of a woman with the semen of a donor through means other than sexual intercourse. The woman may expect to raise the child as her own or she may be a surrogate, in which case, she carries and gives birth to a child but will not raise the child as her own. This poses the following family law issues: what is the status of the child and the rights and obligations of the adults that played a role in the making of the child? Assuming that the donor’s identity is known, can the sperm donor be treated as the child’s parent, for the purposes of granting him custody or access rights? Can the child’s mother sue the donor for child support? Assuming again that the mother of the child was married at the time of the child’s birth, can the mother’s husband be forced to pay child support for a child that is not genetically his?
Let’s change the scenario a little bit: the husband and wife divorced two years after the birth of the child. Child’s mother remarries. New husband seeks to adopt the child. Can the mother’s ex-husband veto the adoption by mother’s new husband (eg by refusing to consent to the adoption)?
What if the mother was unmarried at the time of insemination and at the time of the child’s birth, would the sperm donor be treated as the child’s legal father?
SURROGACY
There are two types of surrogate motherhood: Conventional and Gestational Surrogacy. In most surrogacy arrangements, things go as planned. Occasionally, the surrogate changes her mind and this raises a lot of issues to be dealt with by the family law court.
Conventional Surrogacy: In conventional surrogacy, the surrogate contributed her egg and also gestated the baby. The surrogate is the genetic as well as the birth mother of the child.
Example : married couple who cannot have children naturally, agree with another woman, (a surrogate) to have the surrogate inseminated with the husband’s sperm on the understanding that the surrogate would waive all parental rights to the child. The parties signed a surrogacy agreement. What if the surrogate changes her mind and decides to not relinquish the child? In a custody battle between the man and the surrogate, how would the family court determine who would have custody of the child? What is the status of the man’s wife (who was originally intended to be the child’s mother) vis a vis the child? Does she have any parental rights in this case? How about the surrogacy agreement? Can the couple sue the surrogate to demand specific performance of their contract? Should the court enforce the surrogacy agreement? Can the surrogate veto the adoption of the child by the man’s wife by refusing to consent to the adoption?
Gestational Surrogacy: In gestational surrogacy, the surrogate supplies only the gestation. Her eggs are not used. This is usually used with medical technique of in vitro fertilization where the sperm and the egg are fertilized in a test tube. Example: a married to have children. The wife is capable of supplying her eggs but for medical reasons, she could not carry the child through gestation. He eggs are surgically removed and fertilized with the husband’s sperm in a laboratory. The resulting embryo is then implanted into the womb of the gestational surrogate, who carries it to term and gives birth to it. There is a surrogacy contract
In this case, the birth mother is not the child’s genetic mother and the genetic mother is not the birth mother. She was originally intended, by all parties, to be the child’s mother.
If the surrogate refuses to relinquish the child, we have a conflict between the ‘ genetic mother” and the “ birth mother”. Who is the “legal mother”? How would the court resolve the conflict between the woman who supplied her eggs and the woman who gave birth to the child? Should the parties’ intentions, as manifested by the surrogacy agreement be given effect? Would the surrogate have been given the opportunity to gestate or deliver the child, if she had, prior to the implantation of the embryos, manifested any intention to keep the child? Should the person who intended to bring about the birth of the child that she intended to raise be declared the “ legal mother”?
EGG DONATION
Consider this scenario: a woman donates her eggs to be implanted into the womb of another woman, the intended mother. The eggs were fertilized in vitro with the sperm of the intended father. The egg donor’s contribution is to supply her genetic material and not to gestate or give birth to the child. Is the egg donor the child’s mother? Does she have any rights to the resulting child?
“ OWNERSHIP’ OF EMBRYO
When a couple uses in vitro fertilization to create test tube embryos, which are stored in a fertility clinic for future use, upon the breakdown of the relationship, which party “owns” the embryos? Can the woman have the embryos implanted in herself without the consent of the man? Can either party donate the embryos to a third party for gestational surrogacy without the consent of the other party?
Example: married couple used in vitro fertilization to produce 5 embryos which are frozen and stored in a fertility clinic. The parties divorced and each remarried, while the embryos remained at the fertility clinic. The woman sought “custody” of the embryos so she could donate them to for the use of childless couples. The man refused to consent to this, saying he did not want to become a father under these circumstances. How will the court decide?
These are the kinds of hot emerging issues arising from the intersection of Fertility Law and Family Law, which we have decided to name “ Fertility Family Law”. Manafa Law Office is at the forefront of these emerging trends in Family Law practice.
POSTHUMOUS CONCEPTION
Medical technological advances have also made it possible for a man to father a child posthumously. Posthumous conception has also raised new issues for the family court to grapple with.
The following are some scenarios in posthumous conception:
Scenario 1: Jim was diagnosed with cancer and stored his spermatozoa at a fertility clinic prior to chemotherapy or radiation treatment. He signed a consent for wife to use the sperm for conception, if he died. He subsequently passed away. His wife was inseminated with his sperm and she has 2 children.
Scenario 2: Jake is an army officer about to be sent to a war zone. Prior to going into battle, he stored his sperm at a fertility clinic and signed a consent allowing his girlfriend to be inseminated with his frozen sperm, if he died in battle. He was killed in the battlefield. His girlfriend was inseminated with his genetic material and she has a child for the deceased soldier.
Scenario 3: Married couple has 5 frozen embryos at Fertility Clinic consisting of both parties’ genetic material. The wife dies. Husband uses the services of a surrogate and has 2 children, using the frozen embryos.
Scenario 4: Wealthy couple has an only child, a young man of 25 years, who was killed in a car accident. Prior to his death, he had signed a consent allowing postmortem sperm retrieval for his parents to use to produce a child. This was done and stored at a fertility clinic. Medical literature recommends that the post mortem sperm retrieval be done within 24 hours of the person’s death to enable recovery of viable sperm. The parents of the deceased young man had a surrogate inseminated with his sperm. The surrogate gave birth to two children.
At Manafa Law Office, we can assist with declaration of parentage for a posthumously conceived child. We can also assist with Dependant Support Application for the posthumously conceived child against the estate of the deceased parent.
Our services include:
Preparation of Fertility Law Agreements eg Surrogacy Agreements, Egg Donation Agreements,
Sperm Donation Agreements etc.
Providing Independent Legal Advice
You need a lawyer who understands the ins and outs of this rapidly developing area of family law. If you need a Toronto Fertility Family Lawyer, contact us today.
