Family law needs to play catch-up with modern life

British Columbia’s proposed family law reforms are centered on the non-nuclear family and related issues of separation and child born with the use of surrogacy and sperm donors.  Many legal issues are on the rise as the use of surrogacy increases in various family situations.

In a recent case highlighted in the Globe and Mail, a couple who had paid a surrogate to carry their child had found out that embryonic genetic testing had revealed the child was likely to have down syndrome, leading to their request for the surrogate to abort the pregnancy. The couple had a thorough legal agreement with the surrogate, and if the surrogate refused to terminate the pregnancy then she would be responsible for raising the child.

However, a University of Calgary professor told the Globe and Mail that Canadian courts would not be likely to honour the agreement, as the court would lean towards the child’s biological parents to raise the child as being better for the child than an unrelated stranger. In this case, the surrogate ended up having an abortion for family reasons.

The case raises the question of whether the child is being treated like a product, and if the parents can effectively “return” that product if they do not want it anymore. In parts of the United States, parents who use a surrogate can sue to get their money back if the surrogate continues with the pregnancy even if they no longer want to. In other cases, couples have gotten divorced before the baby was born and the surrogate ended up as the custodial parent.

Surrogacy is on the rise in Canada and the provincial, or perhaps federal, government will have to enact legislation to govern this issue to protect the rights of those involved in this modern-day family.

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By heather - Last updated: Monday, October 11, 2010
Filed in Artificial insemination, Family Law Changes Ontario, Provincial legislation, Surrogacy, child custody •