It is now possible for a child to have three biological parents. This revolutionary procedure is intended, for now at least, to be used in situations where a woman wants to have a baby, but her genes have a potential defect which could cause serious “mitochondrial” disorders in the child. To remedy this, another egg is harvested from someone else who doesn’t have the defect, and a bit of the good genetic material is taken and merged with the mother-to-be’s egg. Britain is poised to become the first country in the world to allow this technique, and their Parliament is expected to vote soon on the question. If it gains acceptance, what are the implications for family law?

Surely it is a desirable goal to prevent mitochondrial disorders, which include serious afflictions like diabetes, blindness, and multiple sclerosis-type diseases. But having said that, the intriguing issue for family law is whether someone who merely donates “repair genes” to prevent birth defects in someone else’s child might end up on the hook to financially support that child.

“No” seems to be the obvious answer. Indeed, it may be churlish and ungrateful to even raise the question of whether a woman might end up being financially responsible for a child just because she generously donated a few of her genes in the name of disease-prevention.

In Canada, the trend in the law appears to support this viewpoint. As discussed here in a previous blog, British Columbia recently amended its Family Law Act to say that a donor who provides human reproductive material, or an embryo, for the assisted reproduction of the child, “is not, by reason only of the donation, the child’s parent.” Presumably this would also apply to someone who donates repair-genes, and it would protect that donor from a child support claim.

The law is murkier in Ontario, where there is no such statutory protection for mere donors. Moreover, there is case law suggesting that mere donors are not immune to child support claims. The 2009 provincial court decision C. (M.A.) v. K. (M.) says that the contracts typically entered into with sperm donors, which often say, among other things, that the donor is not liable for child support, are not “domestic contracts”under the province’s family law legislation. Even if they were, their provisions, including any waiver of child support, can be trumped by the paramountcy of “the best interests of a child.”

Nevertheless, it seems reasonable to suppose that, even in Ontario, the mere donation of repair genes for the sole purpose of preventing disease ought not to attract child support liability.

None of this is certain until it is litigated, of course. And more questions will arise in the future as reproductive technology advances further. For example, what happens if other kinds of genes are spliced onto a child — not just for repair, but to control cosmetic issues like height and hair colour, or other traits like intelligence and temperament? It will be interesting to see if people who donate these kinds of genes will be treated as arm’s length parties, with no obligations — or claims, for that matter — when it comes to issues of child support, custody and access.

Bill Rogers is a Toronto lawyer and blogger covering family law and fertility law issues, and a columnist for the Medical Post covering the law of malpractice.

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