Life & the Law

Susan Kootnekoff is a lawyer with Inspire Law in Kelowna. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances . If you would like to reach Inspire Law, call 250-764-7710

This week, we look at the Canadian regime that applies to third party assisted reproduction.

Surprisingly, this is a frontier in which the wild, wild west remains largely intact.  Nail salons and cattle breeding are more closely regulated that the creation of human beings.

Historically, third party assisted reproduction in Canada has been under the purview of Health Canada. The original rationale was that infertility is a health issue.

Some studies suggest that the majority of those who seek third party reproductive assistance do so not because of health problems, but because they are LGBTQ or single. 

Rather than focusing on the intended parents, we should instead be focusing primarily on the people to be born. Health Canada’s focus is not on protecting children.

The federal legislation has always been highly inadequate. After it was legally challenged, many of the federal provisions were repealed before even being brought into force.  The provinces have not generally stepped in to fill the gaps.

The UN Convention on the Rights of the Child states that children’s best interests must be the primary concern in making decisions that may affect them.  All adults, including those involved in making policy and legal decisions, should do what is best for children. When adults make decisions, they should think about how their decisions will affect children.  No child is to be treated unfairly on any basis. A child has the right to know and be cared for by his or her parents, and to preserve his or her identity, including family relations without unlawful interference.

This is the most widely accepted international convention. Every country in the world, including Canada, has adopted it– with one exception: the United States.

The United States is home to the fertility industry that is accessed by many Canadians.

It is time for our provincial legislatures to urgently adopt a regulatory regime governing third party assisted human reproduction, which prioritizes protecting the best interests of the people to be born. These children are human beings with a need to know the complete and accurate medical and genetic history of both parents.

We actually have legal processes that do the exact opposite. For example, courts grant declaration of parentage orders allowing functional parents with no genetic connection to the child to be identified on the child’s birth certificate. The child’s tie with the genetic parent is legally severed. Some say the state ought not to encourage dishonesty. A birth certificate identifies only the legal parents, which may in fact be a biological fiction. Nowhere are biological parents required to be identified.

Pre-conception decisions affect the people created for their entire life, and have far reaching implications. At the time these decisions are made, they have no voice because they do not yet exist. These are children who are vulnerable. Government has a heavy responsibility to protect their best interests above all else.  Intended parents, and those who provide their reproductive material, are often unaware of the issues and concerns that may arise. Without adequate regulation, there are few if any mechanisms to adequately educate them.

Those who were created by these means decades ago are now adults.  Many express a deep human need to know their genetic history. The basic human need to know one’s genetic history is recognized in the Convention on the Rights of the Child. It is also recognized in the area of adoption. 

Why is it not yet recognized in the area of third party assisted human reproduction?

Does the fertility industry have anything to do with it?

While there are of course plenty of issues with the adoption system, the best interests of the adoptee is to be the primary consideration. 

But, if you are conceived with the assistance of a third party’s reproductive material, there are currently few if any laws in Canada requiring anyone to protect your best interests.

There is not even a fox guarding this hen house.

Next week, we will look at the minimum legislative changes needed.