Fertility Law – Frequently Asked Questions

By Parveen Karsan & Bridget Shebib

As fertility law practitioners in this rapidly developing field of law, we often find ourselves faced with some recurring questions. As such, we have drafted this blog post to help provide an answer to some of those questions, and to help the community understand how we can be of assistance to them. However, if you have specific questions or concerns related to fertility law, please contact the fertility law team at McQuarrie. We would be happy to provide you with resources and advice pertaining to your unique situation.

What is Fertility Law?

Fertility law is an emerging area of law that is concerned with the legal issues that British Columbian’s may encounter when working to build their family using assisted reproductive technologies, using or acting as a surrogate, acting as a recipient or donor of genetic materials, or operating a clinic or business in the fertility industry.

Why Might Someone Need a Fertility Lawyer?

In our modern world, it has become increasingly common for intended parents to start their families through assisted reproductive procedures (ARPs) like in vitro fertilization or artificial insemination. ARPs are often used by two partners who simply need a little extra help conceiving with their own genetic material. However, they are also commonly used in circumstances where someone has donated, or been the recipient of another person’s genetic materials, like sperm, eggs, or embryos, or sought the assistance of, or agreed to act as a surrogate.

Importantly, in all these circumstances the legal rights and obligations of all parties involved, as between themselves and in relation to the future child, stand to be triggered or impacted. A fertility lawyer can advise donors, intended parents, surrogates and businesses in the fertility industry on these interests, and can assist in the protection of them by doing any of the following:

1. Drafting donor agreements pertaining to the donation of sperm, egg or embryo donation;
2. Drafting surrogacy agreements;
3. Providing independent legal advice to donors, intended parents and businesses in the fertility industry; or
4. Initiating and/or representing an interested party in a dispute over genetic material or parentage, either in court or in a mediation.

What Kind of Laws are There Governing Assisted Reproduction?

Many of the intended parents we speak to are surprised to learn just how much law there is, and how many rules there are in British Columbia governing and regulating assisted reproduction and parentage. For example, there is federal legislation (i.e., the Assisted Human Reproduction Act, SC 2004 c 2), provincial legislation (i.e., the Family Law Act, SBC c 25), and there are court decisions interpreting and applying these pieces of legislation, which create binding law in the process.

This body of law governs a wide array of topics, including

1. Who is legally considered to be the parent child;
2. Whether and to what extent a surrogate can be paid for expenses they incur while carrying a child on behalf of another;
3. What may and may not be done with an in vitro embryo, and other reproductive material;
4. Consent requirements that must be met before using another human’s reproductive material; and
5. The criminal and financial penalties that will be imposed on those who break these laws.

When Should I Seek Legal Advice?

If you are an intended parent, or a prospective donor or surrogate, it is important to seek legal advice about the legal implications of, and the legal rights and obligations that may be triggered by, the pursuit you are considering as soon as possible. The fertility law lawyers at McQuarrie understand the vulnerable and complex nature of these undertakings for British Columbian’s, and can provide you with resources, the comprehensive and empathetic legal advice, and the representation you will need to help you protect your legal interests throughout the process.

Learn more: Our Reproductive & Fertility Law Legal Services

For all your Fertility Law and related legal inquiries, contact McQuarrie at 604.581.7001 or by filling out the contact form below.