To read the previous part of this article, go to Filiation…or, how can I prove I am the father or mother of my child?

Photo - Femme enceinteThe application of the filiation concept in assisted reproduction is often questioned. Assisted procreation is legally defined as recourse by a person or couples, same-sex or no, to sperm or ova from another person to conceive a child. It can take place with or without medical assistance.

Assisted procreation includes:

  • In vitro fertilisation;
  • Artificial insemination;
  • Sexual relations with someone who is not your spouse to conceive a child.

Recourse to assisted procreation involves the same rights and obligations for parents towards their child as blood ties. Parental authority applies in the same way.

Above all, assisted procreation refers to a parental project. This project is a decision taken by a person or couple, of the same sex or not, to have a child using the sperm or ova from another person. And this person clearly knows that their participation in this project will go no farther than their donation.

Legally speaking, creating a parental project establishes filiation of the child in favour of the person or couple who created the parental project. The person who donated their sperm or ova cannot claim filiation with the child issued from the parental project. 

Photo - Famille homoparentaleAs such, when the child is born, each member of the couple that created the parental project can register their respective names on the birth certificate as a parent. They will then be identified as the father or mother of the child, or fathers and mothers of the child. 

When the parental project involves having sexual relations with a third party, a parental link can be established with the latter! In effect, the male has a period of one year after birth to claim parental ties with the child, even if they clearly know that he only participated in a parental project. This recourse is not possible for sperm donors. They can never claim parental ties with a child issued from a parental project.

Given what I just said, the only way for two men to establish parental ties with a child is through adoption. Indeed, it is impossible for men to create a parental project as it requires a surrogate mother, which is a contract that has no legal value in Quebec. In the eyes of the law, the surrogate mother will be the biological mother of the child until an adoption takes place if it can (it’s not automatic)! 

Finally, once you know your rights and obligations towards your child, and the way to prove that you are there parent, what happens when there is a separation? 

To learn about mediation, read the next article Mediation…or how does custody of my child work in case of separation?