A national review of the law of parentage declarations by. Ellen K. Embury

CFC MarketingSurrogacy in Canada

5/5 - (3 votes)

“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.), [2007] W.D.F.L. 111

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

  1. Immediate Registration (B.C.) – no Declaration needed (new)
  2. Parentage Declaration (AB, Ont, Sask, Man, Nfld., Yukon, N.S., N.B., N.W.T., P.E.I.)
  3. Adoption (Quebec)
  4. 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 2011, c.25)
  • Alberta (Family Law Act, SA, 2003, c. F-4.5)
  • Nova Scotia (Birth Registration Regulations) N.S. Reg390/2007

 British Columbia

  • Family Law Act, SBC 2011, c 25
  • Brand new comprehensive legislation (came into force March 18, 2013) – 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 2003, 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 2009 S.S. 2009, c. V-7.21 and the Children’s Law Act S.S. 1997 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 1987 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 A.A. v. B.B. 2007, ONCA 2
  • Vital Statistics Act R.S.O. 1990 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 Article. 541 “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 R.S.N.S. 1989, c.494
  •  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 1988
  •  “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 R.S.N.L. 1990 c.C-13
  •   There is a reference to Surrogacy in Vital Statistics Act S.N.L. 2009 c. V-6.01 (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 S.N.W.T. 1997 c. 14 provides for Parentage Declarations
  •   Recognize other Canadian declarations pursuant to s. 8(d)

Northwest Territories

  • As of January, 2013 Children’s Law Act S.N.W.T., 1997 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 2002, 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 2011 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.) 2011 CarswellAlta 1754
  • 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
(403) 750-1128 
embury@dbblaw.com

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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