Forty years ago, if queers had children, the children had been conceived in het relationships. There were custody battles waged over whether the now-queer partner (lesbian, gay, or trans) was a suitable parent: sometimes yes, sometimes no.

Then came the lesbian baby boom: children conceived with donated sperm and home inseminations, papered with then-unmandated donor insemination agreements, and post-birth adoption, to ensure that the donor was never a parent.

In the early 90s, before the Family Relations Act was amended to include same sex families, unless the non-bio mother was an adoptive parent, courts refused to recognize any rights in her, post-separation, to have contact with her children.

And then: assisted human reproduction.

The very first human rights case in BC, on the newly-added ground of “sexual orientation,” was a complaint by a lesbian couple against an obstetrician who was, at the time, the only source of commercially-available sperm. He had decided not to inseminate lesbians any longer after he was sued by a lesbian. The moms won. And two lesbian co-moms have been entitled to be registered as parents on their child’s birth certificate since 2001, because of a world-first human rights complaint.

The 2004 federal Assisted Human Reproduction Act (“AHRA”) opened more doors for prospective queer parents. The AHRA represented a typically-Canadian compromise to the ethical question of whether gametes could be bought or sold, or surrogate mothers compensated. The answer was that though it was legal to use “donated” gametes (eggs, sperm, or embryos), and legal to have a surrogate carry a child, it was illegal to pay for the gametes or to pay a fee to a surrogate.

The regulations require that if donated gametes were used, they had to be quarantined for six months to ensure that they were free of transmissible conditions.

So that has created two streams for queers wanting to carry children: the “official” stream, which involves a fertility clinic and a six-month quarantine of sperm, or the old known-donor turkey baster method. Non-gestating intended parents can conceive only through clinics, with their own sperm (sometimes mixed sperm from two gay partners) or ova, or donated gametes and a surrogate mother.

In BC, the issue of parentage of children conceived through assisted human reproduction technologies (“AHRT”) has largely been settled by the 2013 Family Law Act (“FLA”). The FLA draws a bright line between children conceived through sexual intercourse (whose parents are the two who had sex) and children conceived with AHRT (whose parents are the “intended parents”). Donors are never parents simply by being donors. Though the FLA contemplates the possibility of more than two parents on a birth certificate, opinions differ about what the maximum number can be.

Much of the current case law concerns who is entitled to the use of gametes post-death or post-separation. Because of the consent-based regime of the AHRA, couples are limited in their ability to deal with those issues by contract.

Though the current legislative regime, federally and provincially, made it easier for queer couples to have children and be legally recognized as their child’s parents, issues remain, even in BC. Poly families may not be entitled to have all of the adults registered as parents of a child they intend to raise together. Trans folk (especially trans masc gestating parents) report wildly uneven treatment by the health care system, including by fertility clinics.

Though BC has a progressive intention-based regime for determining legal parentage, the same is not true in all Canadian or other jurisdictions. Some Indigenous First Nations require a genetic connection to a member of the First Nations. Intending parents using a surrogate abroad have to navigate Canada’s immigration rules in relation to their newborn.

From a practitioner’s point of view, AHRT law is a complex, niche area. Talk to an experienced practitioner before you launch in.