Assisted reproduction, including surrogacy or the use of donated materials, is a wonderful thing, allowing people who would otherwise not be able to bear children to become parents. However, it also raises several legal issues, which are further compounded due to the extremely personal nature of this area of the law. Parental roles can be confused, especially in situations where a surrogate or a donor is a close friend or relative and has a relationship with the child after giving birth. For this reason, it’s extremely important to set out the expectations of each person involved well in advance; before any steps are taken towards pregnancy.
A recent case from British Columbia demonstrates how complicated these issues can be, and the challenge posed to judges when deciding on who is allowed to be in a child’s life.
In the case at hand, the respondents, M.B. and N.B., were married in 2009. They made several attempts to conceive, even flying overseas multiple times to undergo in vitro fertilization. None of the attempts were successful. In 2014, the couple met K.B., who developed a close relationship with M.B. Eventually, the two began a sexual relationship, although when this began was in dispute. K.B. also became very close with N.B., saying she felt that her presence in the couple’s life provided a bit of a buffer between them, given the tension they were feeling as a result of their inability to conceive.
In 2016, the parties agreed to enter into a surrogacy agreement with K.B., agreeing that K.B. would donate her eggs and carry a child for the couple. In June 2016, the parties prepared and signed their own agreement. Notably, none of the parties consulted with a lawyer to draft the contract or for independent legal advice prior to signing.
The agreement was brief, just two paragraphs, and confirmed that K.B. would be acting as a surrogate for the respondents. The parents agreed to pay K.B.’s expenses related to the surrogacy. While the agreement addressed certain specific post-birth issues, including whether the baby would breastfeed or be fed formula, it did not contemplate any access arrangements or the issue of K.B.’s parental rights.
K.B. became pregnant soon afterward and the child, V.B., was born in May 2017. At the hospital, K.B. signed paperwork allowing V.B. to be released and go home with the respondents. A few weeks later, the respondents sent K.B. documents that she signed before a notary, including a letter and a statutory declaration. The letter stated that K.B. acted as a surrogate for the respondents, and stated the following:
[K.B.] will have access to see the child anytime. There will be no refusal from [M.B.], [N.B.], [M.S.B.’s parents] for [K.B.] to see the child. When the child gets older we will allow [K.B.] to have the child sleep over at her house once in a while.
The statutory declaration confirmed that K.B. was not to be a parent to V.B., that the respondents would be V.B.’s parents, and that K.B. surrendered all of her parental rights to the respondents.
From the time V.B. was born until February of 2020, K.B. had regular contact with the child, although the contact decreased steadily until it was revoked completely. The degree of contact was in dispute, with K.B. alleging that she spent significant one-on-one time with V.B. and the respondents saying that one or both of them was commonly present during K.B.’s time with V.B. The respondents alleged that K.B. began demanding increasingly more access and also wanted payment of $100,000 for her surrogacy expenses. The relationship between the parties deteriorated, and in February 2020, the respondents cut off access between K.B. and V.B. due to their discomfort with K.B.’s increasing demands. A few months later, K.B. brought an action against the respondents seeking to be declared a parent of V.B., as well as shared parenting time and child support. The trial is set for early 2022, but the decision at hand is on a motion brought by K.B. seeking access in the interim.
In determining whether to grant K.B. with interim access, the Court was required to prioritize the best interests of the child. The Court considered V.B.’s best interests in the context of the outcome of the future trial. If K.B. were to get interim access, and then have that access taken away following the trial, this could cause a great deal of uncertainty for V.B. It would mean reintroducing a person into her life whom she hadn’t seen in over a year, a significant period of time for a four-year-old. V.B. could become attached to K.B. during the interim period, and then have K.B. leave her again if the trial judge ultimately finds in favour of the respondents.
The Court determined that withholding access for the interim would be best, even if it meant potentially keeping V.B. from one of her parents for a longer period. If K.B. is successful at trial, it will be less disruptive to the child to get to know her at that point, instead of creating unnecessary disruption by granting interim access only to have it taken away on a permanent basis.
This case, although unique, demonstrates why it is so vital to set out the terms of a surrogacy early on in the process. In this case, there are many issues on which the parties disagree, and were not documented properly. There are three separate agreements mentioned in the case:
Of the three agreements, none were drafted before the pregnancy, and only one was signed before the child’s birth. Had the parties consulted a fertility and surrogacy lawyer in advance of the pregnancy, the lawyer could have ensured that all details, including the payment of expenses, parental rights, and access issues, were set out in clear and unambiguous terms well in advance. An experienced lawyer will also raise potential scenarios to consider, such as a breakdown in the relationship between the surrogate and the intended parents, so they can be addressed in writing. The more informed the parties are prior to beginning the surrogacy process, the easier it will be to manage future disagreements or conflicts and avoid costly and emotionally taxing litigation.
In addition, each party should be sure to seek independent advice from their own lawyer prior to signing any agreement to make sure they fully grasp how the terms will impact them, now and in the future.
Bringing a child is a joyous experience that should be free of stressful legal disputes. At Mincher Koeman, our family law lawyers protect the rights of clients expanding their family through various assisted reproductive processes. We have extensive experience in the drafting and review of custom agreements designed to clarify the expectations of each party involved from the start and avoid future conflict. Please contact our office to make an appointment to discuss your matter with one of our lawyers today by calling us at 403-910-3000 or by contacting us online.
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