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Ottawa Fertility Law - Great Expectations

Separation

Sometimes intended parents separate during the pregnancy or after the birth of the child. There appears to be some confusion in Ontario family courts about the legal parentage rights of non-biological intended parents when this happens.

Often non-biological parents wonder if they have any actual parental rights since they are not biological parents of the child.

In cases where two people are the intended parents of a child conceived through ART, it is possible that:

  1. neither parent has a genetic link to the child (common in male same-sex parents where donor sperm and egg were used; or
  2. that one parent only has a genetic link to the child (common in female same-sex parents parents where donor sperm was used, for example).

If a child was conceived through ART, and only one of the intended parents is genetically linked, an issue of parentage arises if the parents separate before the birth or at the time of the birth. The non-biological intended parent can nonetheless assert parental rights.

In cases where two people separate after they have been parents to a child, and only one of the parents is genetically linked, the status of the non-biological parent as a parent of the child may have never been formalized. That does not prevent the non-biological parent from making successful claims of custody of the child, or to have regular access to the child. One issue the courts will consider to determine custody and access of a child is the previous involvement of the non-biological parent with the child. This concept is called “in loco parentis” (in the parent’s place), and it refers to someone who has acted as a parent towards a child. This means that if you spent some time providing care to a child, or financially supporting the family so the other parent could stay home with the child, you likely will have rights of custody and access to the child. Of course, you might have the obligation to provide child support, too!

Legal parentage as a concept, is much broader than rights of custody and access. It means that if the biological parent dies, you may be able to become the legal guardian of the child.

If you used a donor or surrogacy agreement, hopefully you have included terms in the agreement which confirm the intentions of the parents. Your agreeement should have included a provision that, regardless of the status of the relationship, the parties would apply for an adoption order or a declaration of parentage to secure the rights of the non-biological parent. These two options would lead to the non-biological parent being registered on the birth certificate of the child, as a legal parent of the child.

Every situation is different. Talk to us about your family and we can advise you.