Alberta makes changes to family law

August 2nd, 2011

EDMONTON - The rising use of assisted reproduction, including surrogate mothers and in vitro fertilization, has prompted the province to update its family law legislation to keep pace with modern technology.

The changes also eliminate the concept of illegitimacy.

“A lot has changed over the years, and things that were thought of as not possible, are now possible in terms of artificial reproduction,” Justice Minister Verlyn Olson said Tuesday. “Technological innovation changes the playing field, and if the laws aren’t reviewed and updated to fit the new context, there can be some difficult uncertainty.”

The revisions were passed by the legislature last November and came into effect on Monday.

One of the biggest changes helps children be more certain of who their parents are in cases where they are conceived through reproductive assistance or brought to term by surrogate mothers.

For example, under prior legislation, surrogacy was recognized only in situations where a woman provided an egg for the creation of an embryo. In those cases, the woman could make a court application after the child was born to be declared the parent, rather than the surrogate.

Under the amendments, surrogacy is now recognized in situations involving any prospective parent who provides an egg or sperm to create an embryo. If that parent is married or in a common-law relationship, their spouse is also declared a parent, as long as he or she consented at the time of the child’s conception.

“Existing parentage legislation was inadequate as the law did not cover all of the different possibilities,” justice department spokeswoman Carla Jones said. “For example, if a lady is unable to have children and her husband is fertile, they can work with a surrogate. And then providing the surrogate consents, the couple can obtain a straightforward court order to have both the husband and wife be the legal parents of the child.”

Illegitimacy, a concept that dates prior to Confederation in Canada, refers to children who were given fewer rights and privileges because they were born outside of a legal marriage. Illegitimate children could not inherit property from their fathers in many jurisdictions.

Reforms in the early 1990s removed most of the legal effects of illegitimacy in Alberta, though the wording remained in place in some legislation.

“Most Albertans probably don’t think that way anymore, so we are catching the law up with where we are as a society,” Olson said.“Our focus is on the best interests of the child, and it’s hard to argue it’s in the best interests of any child to be considered illegitimate.”

kgerein@edmontonjournal.com