There are laws that determine who the parents of a child are under a variety of different circumstances. For the purposes of these laws, couples are considered spouses if they are married or have lived together as spouses for two years or more.
Presumption of Parentage
Although we have the ability to determine who the biological parents of a child are through DNA testing, the starting point in law is that certain people are presumed to be the parents of a child. The person who gave birth to the child is presumed to be the child’s parent unless:
- a court has made a declaration that they are not a parent of the child, or
- the birth parent is a surrogate and has given up their entitlement to parentage.
For children conceived through sexual intercourse their other parent is presumed to be the person:
- whose sperm resulted in conception of the child
- who was the birth parent’s spouse at the time of conception or birth of the child
- who signed the birth registration form
- who filed a statutory declaration with the birth parent acknowledging that they are the child’s parent, or
- who married the birth parent after the birth of the child and acknowledged that they are the child’s parent.
- who signed a written document with the other parent acknowledging that they are the child's parent
If more than one person meets the criteria above there is no presumption about who the other parent of the child is.
Insemination by a Sperm Donor or Assisted Reproduction
The presumptions listed above do not apply when a child is conceived using sperm from a sperm donor. Sperm donors are not recognized by law as parents of a child conceived with their sperm.
If the birth parent had a spouse when the child was conceived by sperm donation or assisted reproduction, the spouse is recognized in law to be the other parent of the child. However, if the spouse did not consent to the conception or consented and then withdrew their consent before the child was conceived, they are not considered the parent of the child. If a spouse refuses consent or withdraws their consent after the child is conceived they will still be considered the parent of the child.
A spouse can consent in writing to being the parent of a child that will be conceived after their death. In this case once the child is born the other parent can apply to court for an order recognizing the deceased as the child’s parent.
These same rules apply to any other method of conceiving a child other than through sexual intercourse, such as in vitro fertilization.
Two or more people can sign a written agreement about who will be the parents of a child that has not yet been conceived. There are requirements that need to be met for a written agreement to be considered a parentage arrangement. There cannot be more than four parties to a parentage agreement.
The following people must be parties to a parentage agreement:
- the person who will give birth to the child (unless they are a surrogate) and their spouse, if any
- the person whose sperm will be used to conceive the child, if they intend to be a parent to the child, and their spouse, if any
If there are spouses, they must state in the agreement whether they consent to be one of the child’s parents. Spouses who do not consent are not legally recognized as a parent of the child. Each party must receive legal advice from their own lawyer before signing the agreement. The agreement must contain information such as the names and physical addresses of the parties and confirmation that all parties are 18 years of age or older.
If the rules listed above are followed, any party to the agreement who consented to be a parent of the child will be recognized as one of the child’s parents.
Sometimes a woman will agree to carry and give birth to a child for another person or couple. This type of agreement is not legally enforceable but it can result in the intended parents being legally recognized as the child’s parents and the birth mother giving up rights as a parent. For this to happen the following conditions must first be met:
- the surrogate and the intended parents must enter into the agreement before the child is conceived
- the surrogate and the intended parents must each receive independent legal advice before entering into the agreement
- the agreement meets the prescribed requirements such as including the names and physical addresses of the parties and the required wording
- the child must be conceived through some means other than sexual intercourse
If these conditions are met and the surrogate consents to giving up their rights as a parent, the intended parents can become the legal parents of the child. The surrogate cannot give up their rights until 3 days after the child is born. The consent must be in writing using the prescribed form. After this the intended parents can apply to court for a declaratory order recognizing them as the child’s parents. This application must be made before the child is 90 days old.
If the surrogate decides to not follow through with the agreement the intended parents can still ask the court to declare them to be the parents of the child. In making this decision the court must above all consider the best interests of the child. Even though a surrogacy agreement cannot be enforced, the court can consider it as evidence that the surrogate did not intend to be the parent and that the other parties did intend to be the parents.
Unless the child has been adopted or placed for adoption, anyone with a sufficient interest in the matter can ask the court to declare someone to be or to not be a parent of a child. The court can give a party leave to pursue genetic testing from someone who they believe is a parent of the child. No one can be forced to take a DNA test but if they refuse the court can consider that refusal when deciding if they are a parent of the child in question. A court can later change an order if new evidence becomes available that was not reasonably available when the order was made.
The birth registration can be amended if there is an order declaring someone to be or not be a parent or a valid parenting agreement.