Q: I have been reading about the woman who had eight children and in vitro fertilization and wondered if there were any special laws regarding this?
A: As with many high-tech areas such as genetically modified crops, the legal system has not kept up with science. This area gives rise to several intriguing legal issues. I’m not sure we have yet received the final answers, but the debate around them gets you thinking.
Also, remember this discussion is going on around the world, although Canada is moving fairly slowly to meet these new challenges.
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First, consider the science. The advent of scientific advances has changed our views of who can be a parent and what that term’s legal meaning is. It is now possible to have babies created outside the mother’s womb (test tube babies).
Same-sex couples can become parents. In a 2007 Ontario case, a lesbian couple had a baby boy.
The birth mother was implanted with the sperm of a family friend but found the only way the other woman could get any parental rights was to legally adopt the baby.
The male involved had to give up his legal rights to the child. The judge determined the adoption was not needed and that this child could have three parents.
This is an extremely clumsy procedure, which worked through the co-operation of the parties. But what if the man had balked and insisted on asserting his legal rights and connections with the child? A full trial and appeal might have been necessary to sort it out.
Issues to consider
There have been cases involving the use of frozen sperm where the donor has died. Donors of sperm may have rights or obligations that the law really hasn’t contemplated.
The problems and challenges don’t just stem from science. A couple of years ago, a high-profile Saskatchewan case involved an unmarried couple that split before the child’s birth.
The woman arranged to have the infant privately adopted when only days old and did not tell the biological father.
He argued he had not given up any rights to the baby boy and the matter went to trial between the biological father and the adoptive parents.
In what must have been a difficult decision, justice R.S. Smith of the Saskatchewan Court of Queen’s Bench ruled in favour of the adoptive parents.
There was evidence that the infant had bonded to the adoptive couple. The matter was appealed and may have gone to the Supreme Court of Canada, but tragically, the biological father was killed in a motor vehicle accident prior to the appeal proceeding.
The cases do not give much assistance in these novel areas. The need for new legislation to determine and balance the competing interests is required.
Only time will tell whether government will react and how.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. He can be reached at thelaw@producer.com.
