Surrogacy dilemma: Can your surrogate spend time with the child she helped to bear? – Family and matrimonial

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Canada: Surrogacy dilemma: Can your surrogate spend time with the child she helped to bear?

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Can your surrogate spend time with the child she helped carry? This is the question the Supreme Court of British Columbia recently faced in Ko vs. MSB, 2021 BSCS 1238.

The history of the relations of the parties: MSB, NBB & KB

The relationship between the parties involved is messy and unusual. MSB and NBB are a married couple and they had difficulty conceiving a child. KB met the couple in 2014 and soon after they met KB and MSB became lovers. Despite the affair, KB also befriended NBB, the wife. In 2016, KB offered to serve as a substitute for MSB and NBB.

Initially, the parties attempted to implant one of the frozen NBB embryos into KB, but the pregnancy attempt was unsuccessful. After the attempt failed, KB offered to use his own eggs. The parties have agreed through a written surrogacy agreement that MSB and NBB are the intended parents. KB became pregnant with her own egg and MSB’s sperm.

After the birth of the child

A few weeks after the birth of the child, KB signed official documents confirming that she had handed over the child along with all parental rights to MSB and NBB, the future parents. The agreement allowed KB to see the child at any time and stipulated that MSB and NBB would not deny KB access to the child.

During the first two years of the child’s life, the parties had a working relationship and KB was able to see the child regularly. Things got worse when KB began to demand more from parents. MSB and NBB then refused access to the child and KB has not seen the child since February 2020.

KB has requested a contact order to see the child provisionally, as she fights to be declared the child’s parent at trial.

Best interests of the child

Article 37 (1) of the Family Law Act states that the court must consider only the best interests of the child when making a contact order. Article 37 (2) of the Family Law Act sets out the considerations the court must take into account in determining what is in the best interests of a child. The court must consider all of the child’s needs and circumstances, including the child’s health, emotional well-being, the child’s custody history, the nature and strength of the child. the relationship between the child and the important person in the child’s life, the child’s need for stability and the appropriateness of an arrangement that would require the child’s guardians to cooperate on matters affecting the child’s life. child, to name just a few of the factors.

The onus is on the person requesting the contact order to prove that the proposed access is in the best interests of the child.

Considerations for the best interests of the child

Even though there was a written agreement that KB would have contact with the child, the parents had the right to change the agreement and they could not be blamed for doing so when they thought it was. in the best interests of the child to stop contact. The courts are generally reluctant to interfere with a parent’s decision. Courts will give weight to a parent’s perspective and reasons for opposing contact. However, a bad relationship between parents and surrogate does not automatically mean that it is against the best interests of the child to have contact.

The Supreme Court of British Columbia has recognized that there are situations where a child would like to have a relationship with his or her biological parent (s). If the child was in a place where they are ready to get information about their biological parents, then a contact order would be appropriate, despite a difficult relationship between the parents and the other party. This was not the case here, the child was four years old and not in a place where she would be ready to learn about her connection to KB anytime soon.

On these facts, the Court held that forcing the parties to cooperate so that KB could see the child would be difficult and potentially prejudicial to the child in light of the history and current contentious positions of the parties and the acrimony. . The court then considered the child’s age and his need for stability. Weighing the benefits of having KB see the child as opposed to not seeing the child, the court held that there was a high chance of a confusing co-parenting regime for the child if a contact order was authorized. Ultimately, the BC Supreme Court ruled that it was not in the best interests of the child to impose a contact order.

Summary

In summary, the best interests of the child are the primary consideration. While the facts here are unique, the principles and reasoning still apply to other similar relationships. Whether a court will order a contact order is factual and will vary from case to case. It is in the best interests of the parents to maintain a civil relationship with the surrogate mother, to obtain official written documentation confirming that the child has been handed over to the intended parents, and to continue to ensure the best interests of the child. child.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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