Law Times

Law Times • February 10, 2014 Page 11 www.lawtimesnews.com Provinces filling void in assisted reproduction espite the prevalence of assisted human repro- duction, federal efforts to regulate the field have been largely unsuccessful, a situation that leaves the provinces, courts, bureaucracies, and medico- legal groups trying to fill the gaps. British Columbia is the latest province to try to bring its fam- ily law rules in line with modern reproductive realities. It has fol- lowed the lead of Quebec and Alberta in specifically address- ing the issue of legal parentage in its new Family Law Act. It applies the principle that inten- tion trumps genetics and clari- fies that a donor has no rights based on the donation alone. It provides an administrative sequence for surrogacy agree- ments and removes the necessity for a declaration of parentage. Ontario's attorney general is monitoring the changes in Brit- ish Columbia to assess the im- pact on the children involved. So far, the impact on parents has been a positive one, according to Lawrence Kahn of Kahn Zack Ehrlich Lithwick LLP, a family lawyer based in Vancouver who focuses on adoption and repro- ductive technology law. He explains that an intention- based regime has been in place in British Columbia since the 2003 case of Rypkema v. British Columbia established a standard of intention. "e B.C. legislation basically codifies that decision. It creates a statutory presumption that the intended parents are the legal parents and clarifies the po- sition of a donor. You can never stop someone from applying for custody or access, but the donor has no higher standing just from being the donor." Kahn estimates that the pro- cess of registering the birth now costs one-third of what it was in the past. "It's common sense not to have to go to court for orders that are made routinely. It's smart legislation. I use it all the time but I will use it less and less as clients can register the birth themselves." Kahn recommends the use of a statutory framework to save the hassle of a court appearance. "Other provinces probably should be copying it, but it's a leap of faith if the politics of the day will accept it." Ontario is still dealing with a presumption that the birth moth- er is the parent. "e truth is that our legisla- tion deals with who is a legal par- ent from a sexual relationship, not the provision of gametes," says Sara Cohen of D2Law LLP. "It does not even consider children born to [assisted human reproduction]. e legislation is trying to bend to the circum- stances. e B.C. legislation says a donor is not a parent by virtue of donating. Families here don't have that certainty." Sherry Levitan, who practises exclusively in fertility law, believes an intention-based regime is the logical approach. "It covers both donors and surrogacy and gives the right result. It also encourages people to make preconception agreements. If intention is going to be that crucial, people will stop and give the long-term conse- quences more thought." Levitan also believes that if there was more certainty, more people would be willing to donate. "We could say with absolute cer- tainty that they will not be hauled into court for child support five or 10 years down the track." As things stand, other parts of the legal system are trying to adapt to current realities without the assistance of legislation. "By and large, Ontario judges have done a great job," says Cohen. "ey are open to fam- ily building with reproductive technology, as are the bureau- cracies. Even in Ontario, if there is no genetic connection, there's no problem getting legal parentage. It's the legislative side that's lagging." Brahm Siegel of Nathens Sie- gel LLP sees the courts grappling with increasingly complicated family structures and compet- ing rights without legislative as- sistance. "ere are crazy situa- tions: One mum and two dads, one dad and two mums, two parents and only one biological- ly connected, surrogate mothers, tripartite agreements. Who is to share decision-making? Who is liable for child support? Do you factor in a new partner's income? It's a dog's breakfast." Another area where there's a legislative void is in relation to fertility services. A Supreme Court of Canada challenge in 2010 dealt a significant blow to the federal Assisted Human Re- production Act passed in 2004 and the government has yet to produce the regulations required to flesh it out. In March 2013, the government wound down the regulatory body, Assisted Human Reproduction Canada, with its enforcement role and regulatory development function passed to Health Canada. Although the first conviction of a fertility clinic occurred in December 2013, there has been no action of a regulatory nature since Health Canada took over. In response to criticism at the time of the conviction about the regula- tory void, Health Canada advised that the explanations and exam- ples for donors and surrogates on its web site are clear and sufficient. "I don't think anyone feels that way other than Health Canada," says Cohen. "I would say 100 per cent of lawyers, doctors, and aca- demics, no matter whether they are conservative or progressive, would be unanimous that there are huge gaping holes." "e [legislation] was always dismal because it didn't reflect what was happening," says Kahn. "It was contrary to public policy and archaic when it was passed. It's fair to say that if peo- ple have arrangements that are fair and reasonable, they are ig- noring the act. No one's writing cheques for hundreds of thou- sands of dollars. ere is a sense of what are reasonable expenses. It is by and large self-regulating." Given the apparent lack of interest at Health Canada, the medical community is stepping in to create guidelines. e Ca- nadian Fertility and Andrology Society is working on a series of practice guidelines. In June 2013, it released guidelines for embryo transfers and is currently working on practice directions regarding surrogacy. "Our perspective is that we are here for patient safety and quality care," says past-president Dr. Mathias Gysler. "As a multidisciplinary orga- nization, it is our mandate to try and get best practice guidelines widely accepted. As professionals, we must also conform to the law of the land. In my opinion, the law is clear, but in the absence of regu- lations for enforcement, the clinics get legal interpretations and then decide how much they want to blur the lines." Gysler understands that Health Canada is reorganizing but is in the dark as to whether any more regu- latory guidelines are in the works. Health Canada didn't respond to a request for information on its ac- tivities since taking over. LT FOCUS Childview_LT_Nov4_13.indd 1 13-10-28 4:47 PM 'The truth is that our legislation deals with who is a legal parent from a sexual relationship, not the provision of gametes,' says Sara Cohen. BY JuDY VAN RHIJN For Law Times D Therapeutic justice targets infant mental health dvocates are inviting private practitio- ners to join the push for a focus on infant mental health in family law and child welfare cases. e effect of family law disputes and child welfare proceedings on chil- dren under three years old is receiving increased attention due to the advocacy efforts of a coalition of groups. With training and education for judges, lawyers, and case workers, they hope to improve outcomes for stress-sensitive infants caught up in the legal system. It's uncontroversial to say the earliest years of a child's life are vital in development and that mis- treatment and neglect pose significant threats to the BY JuDY VAN RHIJN For Law Times A See Training, page 12

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