GOING ALONE IN PREGNANCY
B.C. has legal pitfalls for ‘autonomous’ mothers, lawyers warn.
Biological clocks ticking, some women are approaching B.C. family lawyers with a problem: They want to have a baby, but their male partners do not.
Can they conceive a child using the sperm of an anonymous donor and raise that child as a single parent — even while living with their husbands or boyfriends? Can their male partners essentially opt out of being a dad?
If they’re single, can they use sperm from a friend without having that friend declared a parent?
These are some of the intriguing — and complicated — scenarios being discussed by family lawyers as more clients stray from the nuclear-family model.
“All of us wonder, what would it look like to have a family where you’ve got a couple that are a couple but only one person who’s going to be a parent. How’s that going to play out? It’s interesting,” said Monique Shebbeare, a Vancouver fertility and family lawyer.
Even though B.C. has progressive laws when it comes to accommodating alternative family models — such as same-sex couples having children through sperm or egg donors — there are still gaps, which is why lawyers are urging clients to proceed with caution.
“They could be caught by the law in a legal obligation that they didn’t know existed,” said Zara Suleman, a North Vancouver lawyer who, along with Shebbeare, is a member of a small group of fertility and family law specialists working to establish best practices to respond to these emerging scenarios.
(Members of the group declined to go into detail about their clients’ cases for privacy reasons but agreed to speak about trends they’ve seen and the potential pitfalls).
The emerging scenarios stem largely from the growing number of women who waited to have children and are now pursuing “autonomous motherhood” or becoming “single mothers by choice.”
Shebbeare counts herself among them. Like many women, she envisioned meeting the right man and having a baby. But as she hit her late 30s, it still had not happened.
“I went to see a fertility doctor who basically told me, ‘ You have no time left to wait for Mr. Right. If you want to become a mom, you need to do this right now.’”
Shebbeare used an anonymous sperm donor and gave birth to a girl. Her case was pretty straightforward, aided by recent changes to B.C.’s laws that make it clear a sperm donor is presumed not to be a parent unless he opts in ahead of conception.
Where it can get complicated is if the woman using a sperm donor is also in an intimate relationship with a man who does not want to be a parent.
Even if they draft a contract ahead of conception in which he withdraws consent to being a parent, there is no guarantee it will stick if, down the road, the couple splits and she seeks child support. If they live under the same roof, the man’s lack of a biological connection to the child may not matter; he could still be deemed a parent or stepparent and may not be absolved of related responsibilities.
Several years ago, an unmarried-but-cohabiting Alberta couple tried, but failed, to get the courts to endorse a written agreement that established the woman would have a child through an unknown sperm donor and the man would not play any role as a parent.
“Can it seriously be contended that he will ignore the child when it cries? When it needs to be fed? When it stumbles? When the soother needs to be replaced? When the diaper needs to be changed?” a 2007 appeal court decision read.
Another scenario that fertility lawyers say is fraught with risk is if a single woman decides to conceive a child using the sperm of someone she knows, like a friend or casual boyfriend, but has no intention of having him be a parent.
“I’ve had a lot of questions,” said Michelle Kinney, a family and fertility lawyer in Victoria. “(They’ll say): ‘I want to get pregnant. I don’t necessarily want someone else involved, so I thought maybe I could just have sex with my friend.’”
Again, experts urge caution. If they have traditional sex, the law is clear — he’ll be the father.
The couple can write an agreement stipulating that he won’t be named as a parent or have parental responsibilities, “but if either person changes their mind down the road, the court is going to do what is right for the child,” Shebbeare said, confirming she helped an unmarried couple draft such a contract but made it clear there were risks.
What might be a safer bet is if the woman is impregnated at home using a turkey baster, lawyers say.
There is a greater chance the male friend could be off the parenting hook.
Some legal scholars say lawmakers ought to do more to think outside the box to recognize unconventional family models.
“If a couple really has thought it through and (are) very solid in their adult intimate relationship and she wants to have a child and is prepared to go the assisted reproduction route and he’s OK with that but neither one of them is too concerned he be a legal parent, then I kind of think, why not?” said Susan Boyd, a UBC law professor who just published a book on autonomous motherhood.
“I think at least having one great caregiver is what a child really needs. If there are more adults in the child’s life, great, but do they all have to be legal parents? Maybe not.”
Until the law brings greater clarity, single women and couples are strongly encouraged to get legal advice, said Holly Yager, a Vancouver fertility counsellor.
“I hear this often: ‘Oh no, nothing’s going to happen. He’ll never sue me for custody. I won’t sue for child support,’ “she said. “But things can go awry.”
“I think at least having one great caregiver is what a child really needs. If there are more adults in the child’s life, great, but do they all have to be legal parents? Maybe not.
SUSAN BOYD UBC LAW PROFESSOR