Some couples create a family using assisted human reproduction. What does the law say about filiation between a child born this way and the parents?
What is assisted reproduction?
Under Quebec law, assisted reproduction usually means that 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 reproduction in Quebec law:
- Manon and Charles want to have a child together. Manon gets artificially inseminated
*with a donor's sperm;
*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 vitrofertilization
*A donor's eggs are fertilized in a test tube with Mathieu's sperm. The resulting embryo (future baby) is transferred into Hélène.
*In vitro fertilization: where the sperm of a man and the egg of a woman are put together outside 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.
Child's and parents' rights
The law says that children born of assisted reproduction have the same rights and duties as any other children. This includes any rights and duties in relation to their parents. What is sometimes difficult to figure out is who the parents are. The law says that the parents are the ones who formed a common "parental project". See the next question.
Important! A heterosexual couple can receive medical assistance to conceive a child using the woman's own egg and the man's own sperm. Even though this would be "assisted reproduction" from a medical point of view, it is the rules on filiation by blood that apply.
The need for "parental project"?
A "parental project" is the decision to have a child by using the sperm or egg of another person. That other person intervenes 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 tells him that he can never have a biological child. The doctor 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 who 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 might be difficult to prove the intent of the mother, her partner/spouse, and the donor/friend at the time the child was conceived. Before attempting to get pregnant , it could 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 article Same-Sex Parents and the Law.
To learn more about the rights and duties of children and parents, see our article Filiation: the Legal Link Between Parents and Children.
Who will be the father
You gave birth to a child after being artificially inseminated with a donor’s sperm. Your husband will be considered the child’s father if you formed a “parental project” together before being artificially inseminated.
You or your husband can write your husband’s 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 born as a result. If there is a misunderstanding between you and your friend, your friend can try to get himself recognized as the father.
Assuming that there was no misunderstanding between you and your friend - 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 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.
My partner got pregnant with my child. It was an accident, but 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 couple 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 before any attempts to conceive.
Since you did not come to a specific agreement 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 involved with being a father.
My spouse is pregnant as a result of in vitro fertilization with a donor's sperm . Can I refuse to acknowledge that I am the child's father?
It depends. If you agreed together to use in vitro fertilization to conceive, you will both be considered the parents. 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 that situation, you didn't form a common "parental project" with your wife.
Be careful: if your actions show the contrary, it may become very difficult to prove that you did not agree to your wife's "parental project". For example, if you sign the declaration of birth and tell everyone it 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"), see our article This Is Not My Child! Attacking or Claiming Filiation.
Resorting to a surrogate mother is risky in Quebec
A surrogate mother is a woman who agrees to lend her womb to carry the baby. Sometimes, she also furnishes the eggs 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.
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, 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 the child is later adopted.
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. Also, any information that could help identify the donor is confidential.
But the law makes a small exception if your child’s health could be affected without having this information. In this case, you can apply to a court to have the relevant information sent to your doctor. You won’t be allowed to access the information, but at least your doctor will.
This option is also open to the child’s descendants (their children and grandchildren), if they need the information about their genes for the same reasons.
This article explains in a general way the law that applies in Quebec. This article is not a legal opinion or legal advice. To find out the specific rules for your situation, consult a lawyer or notary.