I, along with my colleague Christine Murray, were delighted to present to Victoria and BC family lawyers today on the basics of fertility law for family lawyers in drafting separation agreements and cohabitation agreements. In our presentation to the Canadian Bar Association (CBA) Family Law Section, we explored key legal frameworks and practical considerations for family law legal professionals dealing with families using assisted reproductive technologies (ART).
Click Here for PPT: Fertility Law Basics for Family Law Agreements
Summary of Presentation: Fertility Law Basics for Family Law Agreements
Firstly, we discussed the foundational legal schemes governing ART. At the federal level, we have the Assisted Human Reproduction Act (AHRA) which regulates aspects of ART and prohibits certain procedures. The AHRA leaves the determination of legal parentage to provincial laws, and here in British Columbia, we have the Family Law Act (FLA). The FLA provides a comprehensive framework for determining legal parentage in cases involving ART, prioritizing the intention to parent over genetic connection.
In our session, we highlighted the importance of understanding key terminologies such as “assisted reproduction,” “birth mother,” “donor,” and “intended parents” as defined under the FLA. These terms are crucial in navigating the legal landscape of fertility law. For instance, in ART scenarios, the intended parents are those who intend to parent a child conceived through ART, regardless of genetic ties.
We also emphasized the necessity of having clear and comprehensive fertility law agreements, such as known sperm donor agreements, egg or embryo donation agreements and surrogacy agreements. These agreements should outline the roles of each party, compliance with relevant laws, the intended parentage, reimbursement protocols, and the parties’ future intentions. Such agreements are essential to avoid legal disputes and ensure that all parties’ rights and obligations are well-defined.
Another critical area we covered is the intersection of fertility law with family and estates law. It’s vital to have explicit written consent for the use of reproductive material, even where there is a family law agreement or a will. This is critical in situations for use of genetic materials such as for a wife to use her husband’s sperm after his death, as demonstrated by key legal cases.
We discussed the importance of agreements to address situations where a solo person is trying to become pregnant through assisted reproduction, and has or meets a partner.
We also addressed cohabitation agreements, especially for polyamorous families, to address property division, support, and child-related matters. Cohabitation agreements are essential for clarifying expectations and responsibilities among partners, ensuring that all aspects of their living arrangements and financial contributions are clearly defined. These agreements can prevent misunderstandings and conflicts by setting out the terms of property division and financial support if the relationship ends.
Detailed separation agreements are also crucial in ART scenarios to clarify the ownership and use of genetic materials and embryos, protecting the parties involved. Separation agreements should address the disposition of any stored genetic materials, such as embryos, eggs, or sperm. They should specify who retains ownership and what conditions apply to their use, and need to consider the Consent Regulations (Regualtions to the AHRA). Often the Clinic forms or agreements may not compy with the Consent Regulations after separtion.
In conclusion, our presentation underscored the importance of thorough and clear agreements in fertility law and family law to ensure legal clarity and protect all parties’ interests where assisted reproduction is use to conceive children. For further information or specific inquiries, attendees were invited to contact me at michelle@michellekinneylaw.com or Christine at christine@casselsmurray.com.
