At the outset of a parenting relationship, our lawyers can assist you in preparing parentage agreements to ensure clarity and predictability of the parent-child relationships. At any time in a child’s life, if you find yourself in a situation without clarity around the parenting relationship, we can also assist you to resolve these issues or bring a court application for a declaration of parentage.
Where a child is born through assisted reproductive technology, such as by in vitro fertilization, egg or sperm donation, or by a surrogate, Alberta legislation establishes who will be considered the legal parents of that child. In general, the legislation uses an “intention-based” model for determining who a child’s legal parents are. Therefore, we strongly recommend that parties who will be relying on assisted reproduction or surrogacy to have a child enter into a legal parentage agreement prior to that child’s birth to clearly establish the intentions of everyone involved.
Where there is a dispute as to who the parent of a child is, certain individuals have the ability to apply to a court for a declaration that a person is, or is not, a parent.
Who are the legal parents of children born by assisted reproductive technology under Alberta legislation?
In Alberta, the legal parents of a child as established by legislation are (See Part 1 of the Family Law Act, RSA 2003, Chapter F-4.5):
- Where the child is conceived by sexual intercourse, the legal parents are the birth mother and biological father,
- In the case of a couple who require the assistance of an egg or sperm donor and/or in vitro fertilization to conceive, but do not require the assistance of a surrogate to carry the child:
- Where the child is conceived through sperm donation (the provision of sperm with no intention to be a parent) and the embryo is carried by the intended mother, the parents are the birth mother and her spouse or adult interdependent partner*, where that partner consented to the birth of the child through assisted reproduction at the time of conception.
- Where the child is conceived through egg donation (the provision of an egg with no intention to be a parent) and the embryo is carried by the intended mother, the parents are the birth mother and the biological father.
- In the case of in vitro fertilization with the reproductive material of both intended parents, the parents are the birth mother and the biological father.
Who are the legal parents of children born by surrogacy under Alberta legislation?
Where a child is carried by a surrogate, the intended parents must make a court application for a declaration of parentage.
- The court application for declaration of parentage of a child born to a surrogate can be made by:
- the surrogate,
- the individual(s) who provided an egg or sperm with the intention of parenting the child, or
- the spouse or adult interdependent partner* of the individual who provided an egg or sperm where the corresponding sperm or egg was provided by a donor not intending to parent the child.
- In other words, to make a parentage application, at least one of the intended parents must have provided an egg or sperm, and the second intended parent must be the spouse or adult interdependent partner* of that person.
- Where the intended parents’ reproductive material was not used, the intended parents must instead make an adoption application.
*Adult Interdependent Partner is a term used by Alberta legislation to refer to what we commonly understand to be common law couples. However, its definition is broader, and applies to two individuals who are living in a relationship of interdependence for 3 years or more, or individuals who are living in a relationship of interdependence who have a child together by birth or adoption.
Does the law recognize non-traditional family arrangements?
A child can legally have one or two parents of any gender under Alberta’s legislation. However, Alberta’s legislation prohibits more than two parents from obtaining a legal declaration of parentage. Multiple intended parent families could rely on guardianship, or may be able to achieve legal status through the adoption process, but we are not aware of any examples of this.
Outside of Alberta, courts have legally recognized other forms of non-traditional family arrangements. For example, in Ontario in 2017, a platonic same-sex couple were declared legal parents, and in 2018, a Newfoundland court declared three individuals in a polyamorous relationship as legal parents of a child, despite a finding that the legislation contemplated only two parents. Although there are no similar cases in Alberta, these families have paved the way for the possibility elsewhere in Canada.