Levi Minderhoud is a policy analyst for the Association for Reformed Political Action (ARPA) Canada.In the dog days of summer, British Columbia quietly proposed a set of changes to the province’s Family Law Act. The press release heralded the changes as “reforms to better support survivors of family and intimate-partner violence” as recommended by a recent independent report. These proposals were outlined in a policy intentions paper entitled Family Law Act Modernization Project Phase 2: Care of and Time with Children and Protection from Family Violence. Family violence is a horrific reality. Recommendations to address it will likely receive wide support.However, the provincial government’s modernization of the Family Law Act goes far beyond addressing these tragedies. Also on the table is a redefinition of parentage. And while the government claims that this change (as well as several other proposed modifications) is intended to promote the welfare of children, there is good reason to think that these changes will hurt children — as well as the broader society — in the long run.BC Family Law: Past, Present and FutureFamily law in British Columbia, such as The Family Relations Act of 1978, has long recognized that families are based on a mixture of biology, marriage, and intent, with biological connection being the cornerstone. Rather than the state devising its own definition of parentage, this legal arrangement merely recognized that most children would be born to a couple, with provisions for recognizing fatherhood in the absence of a relationship. Underlying this was a recognition of the biological reality that parenthood stemmed from procreative sexual intimacy. This arrangement recognizes that the family is pre-political rather than being created and defined by the state..WS OPINION: Carney’s EV tariffs are driving Canada into a wall.The advent of assisted reproduction and the passage of the federal Assisted Human Reproduction Act of 2004, however, complicated parentage. For the first time in human history, technological means could create an embryo outside the womb and implant that embryo into a woman of choice. A growing number of would-be parents found the decades-old family law not well-suited to the technological era.Thus, in 2011, British Columbia passed a new Family Law Act. The Family Law Act essentially maintained the existing definition of parentage for children conceived naturally, but created a second stream for defining parentage when assisted reproduction is used. The details of the latter are complicated, but in essence, it bases parentage upon intent. Sperm donors, egg donors, and surrogates are all assumed not to be the parents of the ensuing child, despite being biological parents. The title of parent goes exclusively to the “intended parents” (unless all parties sign an agreement setting out that the sperm donor, egg donor, and surrogate intend to be a child’s parents as well)..But social conditions have changed as well. Take, for example, a 2021 birth registration case, where a polyamorous trio all desired to be recognized as parents. As the child was conceived naturally by only two of the relationship’s members and current family law recognizes only the birth mother and one other male to be the parents, the province refused to recognize the third member as the parent of the child. After considering the case, the court reasoned:There is a gap in the Family Law Act with regard to children conceived through sexual intercourse who have more than two parents. The evidence indicates that the legislature did not foresee the possibility that a child might be conceived through sexual intercourse and have more than two parents. Put bluntly, the legislature did not contemplate polyamorous families. This oversight is perhaps a reflection of changing social conditions and attitudes... or perhaps is simply a misstep by the legislature. Regardless, the Family Law Act does not adequately provide for polyamorous families in the context of parentage.The judge then declared that all three members of this polyamorous triad were the parents of the ensuing child. In response to this and “the needs of modern family structures”, the province recommended several changes to the Family Law Act. .ALBERS: Something big is beginning to grow in Alberta independence movement.The primary recommendation is to “align parentage provisions for children conceived using sexual intercourse with provisions for children conceived using assisted reproduction.” Rather than having two parentage streams, one based primarily on biology for children conceived naturally and one based primarily on intent for children conceived through assisted reproduction, the province proposes that all parentage be ultimately based on intent. The parents of children conceived in the absence of a pre-conception agreement would be the woman who provides the egg and gives birth and the man who provided the sperm. Presumably, the lack of any written pre-conception agreement signals that only these two persons intend to become parents.However, the policy paper recommends that pre-conception agreements be the basis for parentage in all other circumstances, not just in instances of assisted reproduction. For example, if all members of a polyamorous quartet want to be the parents of a child naturally conceived by only two of them, all they need to do is sign a pre-conception agreement, and their wish will be granted. While the details are sparse, it is also possible that these changes may allow any four people (not just people in a marriage or a marriage-like relationship) to contract together to become the parents of a child. Ontario’s family law allows this in surrogacy arrangements..And to expand the range of “reproduction options”, the province recommends allowing “sperm donation by sexual intercourse.” Thus, as long as a sperm donor signs on the dotted line signalling his intention not to be a parent, a single woman, a wife with an infertile husband, or a partner in a lesbian relationship could have sex with the sperm donor so that she (and any spouse) could become a parent. Finally, the family policy architects suggest replacing all gendered language in the Family Law Act – terms such as “father” or “mother” – with “inclusive terms that accurately describe particular roles in conception, birth, and parenting.” As an appetizer of what to expect in the final revisions to the law, the policy paper repeatedly uses the term “person who gives birth” or “person who provides the sperm” to describe mothers and fatherAre These Changes in Children’s Best Interests?Reactions to such an overhaul of parentage law may run the gamut. Religious conservatives may recoil at the redefinition of parentage. Secular progressives may rejoice at the inclusion of modern family structures. Less ideological Canadians may be instinctively uncomfortable with some of these changes but might accept these changes in the name of expanding individual freedom..WENZEL: Canada’s new culture war is being fought in Google reviews.However, all of these reactions focus on the desires and activities of adults. But what about the children? Will these changes to family law have any effect on the children conceived through these pre-conception agreements and the contractualization of parentage?The answer is likely yes. Existing data on various family structures suggests that departing from the traditional family — children conceived by, born to, and raised by a mother and father married for life — negatively affects children in all sorts of ways. Single motherhood has long been correlated with higher poverty rates. According to Statistics Canada, the poverty rate among one-parent families was six and a half times higher than that of two-parent families. Conversely, this study and the Polygamy Reference found that having more than two parents (e.g. in polygamous families) tends to lead children to suffer more emotional, behavioural, and physical problems. Mothers and fathers tend to parent in different ways, with each providing unique and necessary benefits to their children. For instance, the lack of a present father lowers child well-being in various ways, particularly affecting high school graduation rates, social-emotional adjustment, and adult mental health. Katy Faust and Stacy Manning, in Them Before Us, describe how a growing number of children, adolescents, and adults are struggling with their sense of identity and belonging from being conceived through donated gametes and never knowing their biological parents. These precedents should caution against redefining parenthood, for they suggest that more matters than just the intention to parent. The number of parents, the gender of parents, the marital status of parents, and the biological connection to parents all matter for the well-being of children. The proposed changes to British Columbia’s family law downplay these elements and will accelerate the departure from traditional family structures.Conservatives especially should be wary of throwing off the tried-and-true ways of ordering society, especially the most foundational group unit of society: the family.Levi Minderhoud is a policy analyst for the Association for Reformed Political Action (ARPA) Canada.
