Who Are The Parents? Court Asked To Declare Parentage Of Twins Conceived Through In Vitro Fertilization

In B.A.N. v. J.H., 2008 BCSC 808, a husband and wife (the “intended parents”) applied to the court for a declaration that they were the sole parents of twins conceived through the in vitro fertilization process, using the husband’s sperm and an egg donor’s ova, with the resulting embryos being implanted into a surrogate mother.  The egg donor and the surrogate mother did not oppose the application. 

The B.C. Vital Statistics Act presumes the birth mother to be the mother of a child, such that the surrogate mother could have registered the birth, naming herself as the birth mother.  The intended wife could then adopt the children, thereby severing any legal relationship between the children and the surrogate mother.  However, the intended parents wanted to avoid the adoption process and wanted to register themselves as the birth parents. 

The court determined that it had the authority to make the declaration sought and then granted the declaration that the intended parents are the parents of the children. 

The key factors in reaching this decision included that the intended father was the true genetic father, that the surrogate mother and egg donor both consented to the application, and that the intended parents had provided the court with a letter from the Vital Statistics Agency, the organization in B.C. responsible for the registration of births, which stated their policy that they would approve the registration of the births with the intended parents listed as the birth parents provided that one of them is a genetic parent, the surrogate mother consents to have her legal relationship with the children severed, and upon them obtaining a declaration from the court declaring them to be the parents.

If any of the parties did not consent or if neither of the intended parents had been the genetic parent, the result may well have been different.

A link to the full decision can be found at:

http://www.courts.gov.bc.ca/jdb-txt/sc/08/08/2008bcsc0808.htm

For more information on this topic, contact Pushor Mitchell Associate Ashleigh Baylis at:
baylis@pushormitchell.com or (250) 869-1225