Reflecting All Families

Changing the Landscape of Family Law

Reflecting All Families

Lawyers practising at the unique nexus of family law and fertility law are increasingly faced with scenarios or client inquiries like the ones below.

  • I want to have a child by an anonymous sperm donor, but I’m married and I don’t want my spouse to be a parent.
  • I have two partners and we all want to have a child together.
  • I plan on having sex with my ex-boyfriend to have a baby — but he’ll be a donor and I’ll be the only legal parent — that’s okay, right?
  • My partner is going to have a child with someone else, but I don’t want to be a parent.
  • I’m going to be the birth dad, how will I be listed on the birth registration?
  • I’m going to be a donor for my friend, I just need to make sure I can have regular contact with the child.
  • My partner and I want our surrogate to raise our child with us.
  • My sister will be my surrogate so we don’t need an agreement right?
  • My partner and I broke up, but we still have frozen sperm stored at the fertility clinic — I can still use it — right?

Relationships come in all forms. Families come in all forms. There are also now many different ways using assisted reproduction to expand families and have babies.

In many ways, medical advancements and expanding notions of relationships, beyond monogamous units, have created abundant options to reimagine family, baby-making and relationships.

Unfortunately, family law and fertility law, as most laws, are always in catch up mode and are often left trying to respond to the real lived experiences of people who just want to make sure they are protected and have secure legal entitlements and rights for their children and their parental rights.

Increasing models of autonomous parents, multi-parent families, and polyamorous families having children are pushing family law to modernize and fill in the gaps.

In addition, parenting and family structures for LGBTQ2SI+ communities also challenge the way in which we look at the very gendered, heteronormative, and often oppressive dominant language of family law and fertility law (and all laws) that make invisible Trans, gender-nonconforming, gender diverse realities and experiences.

As lawyers we want to make sure people are protected from “falling into” legal roles that they had never intended to assume while also making clear the boundaries of the relationships and family forms they do desire and intend to form.

Also built into the current family law and fertility law legislation are far more hurdles, expenses, and time for people who don’t fall within dominant relationship and family-making structures. There are significant concerns regarding access to justice, fairness, substantive equality, and representation.

Currently the BC Law Institute (“BCLI”) has a law reform project that is specifically addressing some of the gaps and needs to transform and review legal parentage under Part 3 of the Family Law Act in order to best represent ALL people, ALL relationships, and ALL families. For more information about the BCLI project please go here.

Family law and fertility law will need to be proactive to meet the future challenges of assisted human reproduction and to legally recognize the intention of people wanting more autonomy over their relationship and family making options.