La loi vos droits

Parents - New parents

Assisted Procreation

Up until now, Mathias and Sofia have tried to have a child but all of their attempts have failed. The doctors have told them some bad news. According to them, Mathias will probably never be able to have a biological child. After thinking about it for a long time, Mathias and Sofia decide to use assisted procreation. However, they want to ensure that they will both be considered the parents of the baby, even though Mathias will not be the biological father.

In this Infosheet, Éducaloi explores the relationship between a child and his parents when he is born as a result of assisted procreation.

What is "assisted procreation"?

There are several ways of defining “assisted procreation” or “reproduction”. Medicine and the system put in place by Ottawa to control it, make it a matter of techniques and laboratory procedures.

Quebec law, on the other hand, focuses on where the genetic material came from and on the ultimate goal of conceiving a child with this genetic material.

In Quebec, “assisted procreation” is when a person or a couple uses the sperm or egg of someone else to conceive a child, with or without medical help.

Here are some practices that would fall under “assisted procreation” as understood in Quebec law:

• Manon and Charles want to have a child together. Manon gets artificially inseminated

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  with a donor’s sperm;
  
  

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  Artificial insemination: where the sperm of a man is injected into a woman without having sex.
  
  
• In a final attempt to have a child, Hélène and Mathieu go to a fertility clinic. The attending physician suggests the use of in vitro fertilization

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  . A donor’s eggs are fertilized in a test tube with Mathieu’s sperm. The resulting embryo (future baby) is transferred into Hélène.
  
  

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  In vitro fertilization: where the sperm of a man and the egg of a woman are put together outside of the woman’s body to form an embryo (future baby) and then placed in the woman’s body.
  
  
• Patricia and Isabelle are together and want to have a child. Marc says that he will help them by having sex with Patricia. He agrees that Patricia and Isabelle will be the mothers of the child and that he will not be a parent.

What does the law say about children born of assisted procreation?

The law says that children born of assisted procreation have the same rights and duties as any other child. This includes any rights and duties in relation to their parents. What’s sometimes difficult to decipher is who their parents are. The law says that the parents are the ones that formed a common “parental project”. See the next question.

What is a "parental project"?

A "parental project" is the decision to have a child by using the sperm or egg of another person. That other person must intervene to give his sperm or her egg but his or her participation ends there.

For example: Lucie and Rami decide to have a child together. Rami’s doctor informs him that he can never have a biological child. He suggests adoption or artificial insemination. Rami breaks the bad news to Lucie. He feels that adoption is not for him and asks her to go to a fertility clinic to receive a donor’s sperm. Lucie thinks about it and finally agrees to undergo the process. Lucie and Rami have just formed a “parental project” together.

When a couple (or a single woman) forms a parental project, the law says that they are the parents of the child that is born. That means that they have all the rights and duties of parents toward the child even if the child is not related to them by blood.

Be careful! Nine months or several years down the road, it may be difficult to prove what the intent of each person was when the child was conceived- the mother, her partner/spouse and the donor/friend. Before any attempts to get pregnant are made, it may be useful to have a signed document in which everyone involved acknowledges that there is a parental project.

To learn more about “parental projects”, consult our Infosheet Same-sex parents and the law  (http://www.educaloi.qc.ca/en/loi/parents/369/).

To learn more about the rights and duties of children and parents, consult our Infosheet Filiation: the legal link between parents and children  (http://www.educaloi.qc.ca/en/loi/parents/368/).

I was artificially inseminated with the sperm of a donor. Will my husband be considered the father of the child born using this technique?

Yes if you formed a “parental project” together before being artificially inseminated.

You or your husband can write his name down on the “declaration of birth” once the child is born. That way, his name will appear on your child’s birth certificate and prove to others that he is the father.

A friend agreed to help us with our “parental project” by having sex with me. Can this friend claim that he is the father of the child?

It depends. Remember that your friend must know from the very beginning that he is helping out with your “parental project” and that he will not be the father of the baby that will be born as a result. If there is a misunderstanding on that point between you and your friend, then your friend can try to get himself recognized as the father.

Assuming that there was no misunderstanding between you and your friend- that he knew of your “parental project” and agreed that he was only a “helper” and not the father of the child- the law still gives him one year from the baby's birth to change his mind.

The law only gives this one year to the man who had sex to help with the parental project. The sperm donor is excluded; he cannot change his mind and try to say that he is the father.

Your friend would have to take the appropriate steps to have himself recognized as the father of your child before the year ends. This can disturb your partner’s status as the child's father (or second mother) because by law, a child can only have two parents.

Once the year ends, your friend’s right to change his mind ends also.

I had sex with a woman and accidentally got her pregnant. She wants to keep the “baby”. Can I claim that she made a “parental project” on her own and that I should not be considered the father?

No. Accidents happen and an “accident” is not the same thing as a “parental project”.

In the “parental project” where a woman asks a friend to help out by having sex with her, the friend must be aware of the goal of the sexual relation and agree to help out with “project”. The goal of the sexual relation must be to contribute sperm to help this woman or this couple to have a baby. The friend must agree in advance that he will not be the father of the child born as a result.

Basically, in a “parental project”, everyone involved must agree about the goal they are trying to achieve before any attempts to conceive take place.

Since you did not agree to anything before having sex, the child (represented by his mother, if need be) or anyone else with an interest in the matter can take you to court to have you declared the father, with all the rights and duties attached to that title.

My spouse is pregnant as a result of in vitro fertilization where a donor’s sperm was used. Can I refuse to acknowledge that I am the child’s father?

It depends. You would both be the child’s parents if you agreed together to use in vitro fertilization to conceive. That would be considered a common “parental project”. Moreover, since you are married, the law assumes that you are the father if anyone takes you to court to try and say otherwise.

However, if your wife decided on her own to use in vitro fertilization to get pregnant, you can refuse to acknowledge that you are the father. In those circumstances, you didn’t form a common “parental project” with your wife.

Be careful: it may become very difficult to prove that you did not agree to your wife’s “parental project” if your actions show otherwise. If you sign the declaration of birth and tell everyone that this is your baby, you may have a hard time proving that your wife acted alone.

For information about going to court to say that you are not a child’s father (called “disavowal”), consult our Infosheet This is Not My Child! Attacking or Claiming Filiation  (http://www.educaloi.qc.ca/en/loi/parents/424/).

Is it legal to resort to a surrogate mother?

A surrogate mother is a woman who agrees to lend her womb to carry the baby. Sometimes, she also furnishes the eggs necessary to conceive the child. Once she delivers the baby, she gives it over to the people who retained her services (freely or for payment).

Although it is not illegal to resort to a surrogate mother, it is illegal to pay her for her services or to ask a person under 21 years of age to act as a surrogate mother.

However, in Quebec, surrogate mother contracts have no legal value. It is therefore a very risky contract to make because:

• The surrogate mother can decide to keep the baby;
  
• Her clients can decide that they don’t want the baby anymore;
  
• If the male client’s sperm was used, he is considered the father, with rights and duties, which can make things very complicated;
  
• In the eyes of the law, the surrogate mother is the child’s real mother and she can’t be replaced unless an adoption is completed. Adoption, in this type of situation, has previously been refused and the law remains unclear.

Traditional adoption remains the most common option for couples who cannot have a child. To find out more about adoption, read our Infosheets entitled Adopting a child in Quebec  (http://www.educaloi.qc.ca/en/loi/parents/154/) and International adoption  (http://www.educaloi.qc.ca/en/loi/parents/203/).

If I donate sperm to a sperm bank, is it possible that, one day, I could be legally considered the father of the children that I helped conceive?

No. The law states that filiation (the bond between a child and a parent) cannot be established between a sperm donor and the child conceived using the donor’s sperm. Moreover, any information that could help identify the donor is confidential.

I am a child born of artificial insemination. Do I have the right to know who my biological father is?

No, you do not. All information that can be used to identify the sperm (or egg donor) is confidential.

However, the law makes a small concession if you need information about your biological origins because, without it, your health could be seriously harmed. In that case, you can apply to court and ask to have the relevant information released to your doctor. You still won’t be allowed to access the information, but at least your doctor will.

This option is also given to your descendants, if they need the information about their gene pool for the same reasons.