In British Columbia Birth Registration No. 2018-XX-XX5815, 2021 BCSC 767, the BC Supreme Court considered whether a child conceived through sexual intercourse can have more than two legal parents.
The petitioners, Olivia, Eliza and Bill, were three adults who had been living in a polyamorous relationship since 2017. In 2018, Eliza and Bill conceived a child (Clarke) through sexual intercourse. During Eliza’s pregnancy, the petitioners agreed that Olivia would be involved in Clarke’s life as a “full parent.” Due to the operation of section 26 of BC’s Family Law Act, however, Eliza and Bill were the only persons recognized as Clarke’s legal parents on Clarke’s birth registration, being his birth mother and his biological father. The petitioners sought a declaration that Olivia was Clarke’s third legal parent, arguing that there is a legislative gap in the Family Law Act with regard to children conceived through sexual intercourse who have more than two parents.
The court reviewed the two legislative schemes in place for parentage pursuant to the Family law Act: one that applies where a child is conceived through sexual intercourse, and one that applies where a child is conceived through assisted reproduction.
In the former scheme, the child’s parents are the child’s birth mother and the child’s presumed biological father. In the latter scheme, the child’s parents are the birth mother and birth mother’s spouse, if any; however, in the case of surrogacy, the “intended parents” and surrogates can contract into or out of parentage, and a non-parent donor or a surrogate can also be a parent through a written agreement. As a result, a child conceived through assisted reproduction can have three legal parents, while a child conceived through sexual reproduction cannot.
Madam Justice Wilkinson agreed with the petitioners that a legislative gap exists in the Family Law Act with respect to children conceived through sexual intercourse who have more than two parents. At paragraph 68 of the decision, she held:
“the evidence indicates that the legislature did not foresee the possibility a child might be conceived through sexual intercourse and have more than two parents. Put bluntly, the legislature did not contemplate polyamorous families. This oversight is perhaps a reflection of changing social conditions and attitudes […] or perhaps is simply a misstep by the legislature. Regardless, the FLA does not adequately provide for polyamorous families in the context of parentage.”
The Court also noted at paragraph 46 that simply naming Olivia as Clarke’s guardian would not be the same as declaring Olivia to be Clarke’s parent:
“As the parties all note, parentage determines lineage and a child’s rights on intestacy, citizenship, potential access to parental leave, and certain financial obligations, among other things. However, and perhaps most importantly, the key difference between parentage and guardianship is that parentage is immutable: the relationship between a parent and their child cannot be broken. Accordingly, there are practical and symbolic differences between parentage and guardianship such that guardianship is not a “cure-all” for Olivia.”
Relying on its parens patriae jurisdiction, the court declared Olivia to be Clarke’s legal parent alongside Bill and Eliza.
If you have any questions about the impact of parentage and guardianship on your estate planning, a member of our Wills, Estates + Trusts team would be happy to assist you.