By Chantal M. Cattermole, Jeannette Aucoin and Vivian Thieu

In a new case out of Alberta, the court considered two issues regarding post-humous parentage, and reflection of that parentage on a birth registration:

1) Can a parent be named on a birth registration notwithstanding the parent was deceased at the time an embryo was implanted?

2) Can the living parent apply to court to compel the Registrar of Vital Statistics to amend a birth registration to reflect the parentage of the deceased?

The answer to both of those questions is: yes.

In Hoellwarth v Vital Statistics Alberta, 2023 ABKB 339, Kari and her deceased husband, Allan, underwent in-vitro fertilization (IVF) and produced several embryos. One embryo was used and resulted in the birth of the couple’s first daughter. At the time of the IVF, the couple provided their written consent that in the event of death or incapacity of one of them, the embryos could be used at the discretion of the surviving partner.

Allan passed away from pancreatic cancer. Following his death, Kari had one of the remaining frozen embryos implanted, which resulted in the birth of their second child, N. Kari applied to court to have Allan’s name added to N’s birth registration. The Director of Vital Statistics did not take a position with respect to Kari’s application. The Honourable Justice M.A. Marion, in the reasons, noted that the written reasons were for the benefit of the Director of Vital Statistics.

The Reasons

The Alberta Family Law Act (FLA) in section 5.1(2) states that a child’s conception is deemed to have occurred at the time of the implantation procedure. N is considered an “after-born” child since she was conceived using reproductive material from her deceased genetic parent.

The court summarized the historical context of IVF, and noted that “[a]s assisted reproduction technology developed, its use increased and, in 2004, Canada passed the AHRA. The AHRA, interpreted together with the Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations, SOR/2007-137 (Consent Regulation) expressly contemplates that consent to some posthumous use of the donor’s human reproductive material can be made at the time the material is obtained: AHRA, section 8(1); Consent Regulation, sections 2 and 3(a)(ii).” The Alberta court also noted that British Columbia had enacted legislation that expressly provided that a person deceased at the time of conception could be a parent of an after-born child, and if necessary, for the court to make a declaration of that parentage (BC Family Law Act, sections 28 and 31). In 2016, Ontario amended its Children’s Law Reform Act to do the same. Saskatchewan recently followed suit.

The court concluded that a posthumous declaration of parentage can be made in certain circumstances under the Alberta FLA. In this case, the court determined that N’s parents are Allan and Kari based on their written consent and the use of reproductive material provided by the both of them. It also found that section 9(1) of the Alberta FLA (similar to section 31 of the BC FLA), provided the court a broad discretion, on application to make a declaration of parentage if there is “a dispute or any uncertainty as to whether a person is or is not a parent of a child”, and made a declaration accordingly.

With respect to Kari’s application to amend N’s birth registration, the court found jurisdiction to do so under the Alberta FLA. It deemed the amendment to be in N’s best interests by formally recognizing both parents and maintaining consistency with N’s sibling’s parentage, and that it aligned with the United Nations’ Convention on the Rights of the Child (the Convention does not expressly address posthumous conception, but it acknowledges that parentage is fundamentally important to a child’s identity).

Takeaways

Issues around parentage continue to arise and evolve within this growing area of the law. This case highlights the importance of written consent when it comes to the use of human reproductive material, as well as the court’s willingness to recognize legal parentage with particular regard to the parents’ intentions and overall family identity. If you are thinking of beginning the processes of IVF, it is important to consider how that material will be used, including after death. If you have any questions or are looking for more information about fertility law, please contact an experienced member of our Family Law Group.