A recent article by Virginia Galt in the Canadian Bar Association’s National magazine, “You’ve come a long way, baby”, discusses the strides which have been made in assisted human reproduction over the past several years and the failure of legislation to keep pace with the changes.
While many people are aware of the potential legal issues involved in surrogacy arrangements, the author suggests that the legal challenges are much more pervasive, involving such areas of law as family, immigration and estates. Here are a couple of examples which illustrate how the issues can range well beyond the contractual.
Cross-border arrangements are not uncommon in the world of assisted human reproduction. What happens when a Canadian couple obtains their genetic material from a U.S. donor? According to Clare Burns of WeirFoulds LLP, where the child has a genetic connection to the U.S. there may be serious estate planning issues: “…because if you have a U.S. resident heir, that may expose an estate to tax liability in the U.S.”.
Another estate planning issue involves “parentage”. While the law may be clear with respect to the rights/obligations of natural and adopted children and parents, where the birth of a child involved some “assistance”, things can become much more complicated. Ms. Burns provides an example where a child conceivably could have eight parents! (check out the full article for the logistics involved).
The issues appear limitless as suggested by the story of the testator who bequeathed his sperm to his new partner in his Will, thus thwarting his children’s efforts to block her access.
You have indeed come a long way, baby, and, as a result, the law has a lot of catching up to do.
Thanks for reading.