Mom, Mom, And Dad: Identifying Legal Parentage With More Than Two Parents

Published date20 May 2021
Subject MatterFamily and Matrimonial, Family Law, Wills/ Intestacy/ Estate Planning
Law FirmAlexander Holburn Beaudin + Lang LLP
AuthorMs Aubrie Girou and Catherine Bunio

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...

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