“I just want both my moms recognized as my moms.Most of my friends have not had to think about things like this – they take for granted that their parents are legally recognized as their parents.I would like my family recognized the same way as any other family, not treated differently because both my parents are women.”
- 12 year old D.D.in his Affidavit from A.(A.) v.B.(B.), *** ***
Parentage Declaration
Process by which the woman (surrogate) who gave birth is removed from the Birth Certificate and replaced with the Intended Parents – so from an identification perspective the surrogate does not appear on documentation relating to the child
Different from an adoption process – different tests
Substantial differences amongst the Provinces in Canada (substantial inter-State differences in USA)
Importance of Parentage Declarations
Birth documents
International considerations
Name of the child(ren)
Different test than adoption
Simpler and less costly than adoption (in some provinces)
Options for Parentage
Provinces
Immediate Registration (B.C.) – no Declaration needed (new)
Parentage Declaration (AB, Ont, Sask, Man, Nfld., Yukon, N.S., N.B., N.W.T., P.E.I.)
Adoption (Quebec)
Many situations e.g.: N.W.T.adoption appears to be preferred – possibly because no one has tried to use the new Legislation for Parentage Declarations
There are jurisdictional differences – some provinces where the process is much quicker and simpler
Legislation
Parentage Declarations Legislation is Different:
Common features among the provincial legislation:
If assisted reproduction is mentioned, it specifically does not include reproduction from intercourse
Any application for a Parentage Declaration (Mother) is to be made after the Birth
“any interested person” has standing to bring application
Requires Registrar to amend birth registration if Order is made under this legislation
Sets out the basis and circumstances under which DNA can be ordered (or a negative inference can be drawn on refusal to provide DNA evidence)
Evidential burden = balance of probabilities
Differences
Requirement for one or both parents to be genetically related to the child
Assumptions re: egg/sperm donors having parental rights
Extra provincial declarations – explicitly mentioned in legislation or generally accepted?
Room for multiple parents?
Legislation Expressly Recognizing Parentage Declarations and Surrogacy
Acts which clearly anticipate and deal with surrogacies
British Columbia (Family Law Act, SBC *** c.25)
Alberta (Family Law Act, SA, *** c.F-4.5)
Nova Scotia (Birth Registration Regulations) ***
British Columbia
Family Law Act, SBC *** c 25
Brand new comprehensive legislation (came into force March 18, *** – reduces necessity for parentage declarations from Court
“assisted reproduction” – no sexual intercourse
“intended parent” – no reference to genetic material
S.24 – donor not automatically parent
S.29 surrogacy – parents are the intended parents
- Must have a written agreement
S.30 other arrangements – cases where the surrogate or the donors will be parents along with IPs – lots of room for multiple parents
- Must have a written agreement
S.31 – Orders for declaring parentage in cases where there is uncertainty
S.35 +36 – recognizing extra provincial declaratory orders – gives a lot of weight to extra-provincial orders
This legislation gives parties a lot of room to plan their own families
Most Surrogacy friendly jurisdiction in the country.
Presumption is that the intended parents are the parents – so initial presumption is that the surrogate is not the mother (B.C.is unique re: this)
Surrogate does not go on initial birth registration
Declarations likely unnecessary (need to see in practice how this works)
DNA evidence not required
Court Appearance not required
Possibly may still need declarations where no biological relationship of anyone to the child
Legal to have more than two parents
Thanks to Larry Kahn, Q.C
Alberta
Family Law Act, SA *** c.F-4.5
S.8.2 – Application can be made that a surrogate is not a parent of a child born as a result of assisted reproduction
Parents are (1) Bio parent of the Child and (2) person who was in conjugal relationship of interdependence of some permanence at the time of conception with the Bio parent
No more than two parents allowed in Alberta by statute
S.7(4) Donor not automatically parent
Declarations simple to obtain as long as one of the intended parents is genetically related to the baby
Initial registration shows Surrogate as mother, intended father as father (not relevant that Surrogate is married)
Quick process – usually have the declaration within 3-5 days of the Birth
Desk Order versus in Court Appearance
3 Judges assigned to deal with Surrogacy issues
Means that the Intended Parents can be on the Birth Certificate within about 7 days
Same-sex friendly (similar to B.C.and Ontario)
Saskatchewan
Declaration process pursuant to the Vital Statistics Act *** *** *** and the Children’s Law Act *** c.8.2 (neither of which mention surrogacy)
Initially surrogate is listed as the mother – father is the biological father (no issue about surrogate’s spouse)
Intended Mother and Father both listed as “Other Parent”
Interim Custody petition served – wait 30 days
Then bring Application for Parentage (IP’s) and Non-Parentage (Surro)
Very open to concept that child can have up to four parents (per Vital Statistics Act)
Upon order – Birth Registration is amended and Birth Certificate only shows intended parents names
Done by desk order (like AB)
Nothing similar to Alberta and B.C.statement that donors of material are not, by that alone, presumed parents
“Other Parent” definition from Vital Statistics Act talks about cohabitation and intent to parent at time of birth (vs.conception)
Vital Stats will recognize parentage declarations from other jurisdictions in Canada
Thanks to Mary Neufelt, McKercher LLP
Manitoba
No legislation specific to surrogacy situations
Declarations of Parentage proceed under Family Maintenance Act RSM *** c.F20
Declarations re: father can be made prior to birth
Declarations re: mother must be post-birth
Some lawyers in practice do proceed with adoptions because procedure better known
Surrogate goes on the Registration as mother, and her spouse goes on as father
Parentage declaration proceeds in Court – judges are more comfortable with viva voce evidence from surrogate (Court appearance) and some have suggested that they would like to see DNA evidence
Manitoba Summary
Available only where both parents are genetically related to the Child (no donor egg, no donor sperm)
DNA evidence not required if you have an affidavit from the MD who performed the implantation
Judges also like to see evidence of “appropriateness” of Intended Parents (quasi-adoption)
Legislation doesn’t prohibit more than two parents, but understanding is that Vital Stats will not register more than two parents
Likely must have step parent adoption for a non-genetically related parent
Will accept declarations from another Canadian Court as authority to register IP’s as parents
Thanks to Althea J.Wheeler, Petersen King
Ontario
Surrogacy Friendly
Guiding principle is intent to parent per Court of Appeal in *** ONCA 2
Vital Statistics Act *** c.V.4 and Children’s Law Reform Act R.S.O.c.C.12 come into play in surrogacy situations
Initial presumption is that the surrogate is the mother, however she does not go on the Registration
Process is to hold off on the Registration and bring the Court Application (so there is no replacement or amendment of documents)
Declaration allows the Registration and the Birth Certificate to be issued in the names of the IPs
No requirement for any genetic link
DNA – Judges like to see it (?? No genetic link)
Process is a Court Application (not a desk order)
Can take in excess of 6 weeks
No legislation which precludes presumption of parental rights to sperm/egg donors
Thanks to Sara R.Cohen and Shirley Eve Levitan
Quebec
Officially a “no surrogate zone”
Civil Code *** “Any agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null.”
Surrogacies do occur in Quebec
Adoption jurisdiction
New Brunswick
No legislation which anticipates surrogacies
Declaration of Parentage is possible “new and rare”– faster where both parents are biological parents
The Courts prefer to see DNA evidence
Court appearance is probable
Only possible to have two parents
Birth initially registered as Surrogate as mother and her spouse (if married)
Previous declaration granted where both parents were biologically related – case before the Courts now where only one IP is genetically related and waiting for outcome
Unlikely to allow declarations where no genetic link to either IP
However, Vital Statistics will recognize an extra-provincial parentage declaration as authority to amend the NB registration
Thanks to Adele Savoie and Shirley Eve Levitan
Nova Scotia
“Streamlined procedure” under s.5 of the Birth Registration Regulations to the Vital Statistics Act *** ***
Parentage declarations are available where one of the intended parents is genetically related to the child
Surrogate must be listed on the initial registration
Wait for over a month for the birth certificate
Then with birth certificate in hand, file the application (similar to an adoption)
No requirement for DNA evidence
Can proceed by desk order
Order allows for the issuance of a new Birth Certificate in the name of the IP’s
Not aware of ability to have more than two parents (likely need legislative change)
If no genetic link, must do an adoption
Thanks to Terrence Sheppard
Prince Edward Island
Parentage Declarations are available however under the Child Status Act
Woman giving birth is the legal mother at birth per s.9(7) of the Child Status Act, R.S.P.E.I ***
“A woman who gives birth to a child is deemed to be the mother of the child, whether the woman is or is not the genetic mother of the child”
Biological parents can obtain declaration and the birth record will be changed
To date, courts have only dealt with situations with bio IP’s
S.9(8) can only have two parents
DNA evidence speeds the process up
S.9(6) of the Child Status Act states that egg/sperm donors are not for that reason alone considered parents
Thanks to Sophie MacDonald
Newfoundland
Parentage Declarations are available pursuant to ss.6 and 7 of the Children’s Law Act *** c.C-13
There is a reference to Surrogacy in Vital Statistics Act *** *** (refers to parents being IP’s where Declaration has been made)
Surrogate will go on the Registration as the mother
Declaration is obtained (Court Appearance)
Order is filed with Registrar
Registrar deletes the Surrogate’s name and replaces it with the Intended Mother
Declarations re: fatherhood can be obtained pre-birth
Issue of donor egg/donor sperm has not been considered by the Courts in Nfld.
Extra-provincial declarations are valid (s.14)
Neither Vital Statistics Act or Children’s Law Act appear to contemplate more than two parents
Thanks to Anne Fagan
Nunavut
Some express recognition of artificial insemination
No express reference in the statute to surrogacies
Children’s Law Act *** c.14 provides for Parentage Declarations
Recognize other Canadian declarations pursuant to s.8(d)
Northwest Territories
As of January, *** Children’s Law Act S.N.W.T., *** c.14 changes went into effect
Parentage declarations appear to be available – however clear statement that Child is presumed to be Child of Birth mother
Appears that the Statute anticipates donor sperm but not donor egg (may need step parent adoption for intended mother but not intended father)
S.5.1(3) – sperm/egg donors are not by that reason alone parents
Advised by NWT lawyer that many cultural adoptions take place in NWT – very streamlined and simple – Declaration process may be so new and untested that adoption preferred
Yukon
Vital Statistics Act – if married, must register surrogate as the mother and her spouse as father
Parentage Declarations are available under the Child and Family Services Act, RSY *** c.31, but appear to be limited to situations where both of the IP’s are genetic parents (no room for donor egg/donor sperm)
Definition of parents is limited to “natural” parents – with references to DNA testing if necessary
Process
Look at legislation first:
Some jurisdictions with comprehensive legislation may need to refer to courts far less (i.e.B.C.)
Differences:
Length of time
DNA evidence
Specific Justices Assigned?
Intended Parentage
Length of Time to Get IP’s on Birth Certificate
DNA Evidence
Not Required – BC, SK, AB
Benefit from DNA – ON,NS,NB,MB
Unsure: NL, PEI, YU, NWT, NU
Is DNA evidence relevant or appropriate?
Benefits of Assigned Surrogacy Judges
Alberta
Nova Scotia – Honourable Justice Beryl MacDonald presiding over first initial applications – more Judges preside over these now
Process – Intended Parentage
CHARTER Concerns about limiting parentage to Bio Parents
Issue – Alberta’s journey
Prior to Alberta’s *** legislation only relationships eligible for parentage declaration was: Man + Woman + Surrogate (i.e.only purely genetic surrogacy)
Discrimination challenge (Disability and Orientation) H.(D.W.) v.R (D.J.) *** CarswellAlta ***
Confirmed that the old Act which required purely genetic surrogacy discriminated against gay couples on the basis of sexual orientation
Court rules that the Government’s position that these couples could simply “adopt” (lengthier, costlier process involving in home assessments = discrimination)
Now – so long as one person in a couple is genetically related to the child, they can be declared parents
What about couples who require a donor egg and donor sperm?
Opinion: Discrimination on the Basis of a Disability
Where Declarations are available:
Jurisdictions which do not require either IP to be genetically related to the child
British Columbia
Ontario
Jurisdictions which require one IP to be genetically related to the child
Alberta
New Brunswick
Nova Scotia
Saskatchewan (likely)
New Brunswick (maybe: waiting for outcome of Court case)
Likely need two parents to be related to the Child:
Manitoba
Nunavut
Newfoundland
Yukon
Takeaways
Provinces differ, in some cases substantially
Become familiar with a lawyer who does this work in your jurisdiction
Ellen K.Embury
Fellow, American Academy of Assisted Reproductive Technology Attorneys
Dunphy Best Blocksom LLP, Calgary AB
*** *** ***
With Special contributions from:
B.C: Lawrence A.Kahn Q.C., Kahn Ehrlich Lithwick LLP (Richmond, BC)
Saskatchewan: Mary E.Neufeld, McKercher LLP (Regina, Sask.)
Manitoba: Althea J.Wheeler, Petersen King LLP (Winnipeg, Man.)
Ontario: Sara R.Cohen, Fertility Law Canada (Toronto, ON)
Shirley Eve Levitan, Family and Reproductive Technology Law (Toronto)
Nova Scotia: Terrance G.Sheppard, Boyne Clarke (Halifax, N.S.)
New Brunswick: Adele Savoie, Actus Law (Moncton N.B.)
Newfoundland: Anne M.Fagan, Q.C., MacNab, Vavasour Bryne & Fagan (St.John’s NL)
P.E.I.: Sophie MacDonald, Matheson & Murray (Charlottetown, P.E.I.)
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