Posted By Colleen Morawetz
In November 2016, the Ontario Legislature passed the All Families Are Equal Act, which the Liberal government claims will “ensure equal treatment for all parents and children in the province”. This legislation marks an important shift for the province, whose former statutory regime – not having been updated since 1978 – did not explicitly address conception through assisted reproductive technologies or third-party arrangements. The new legislation’s purpose is commendable: to ensure that all types of parents are treated equally, regardless of their sexual orientation, reproductive capacity, or the number of parental figures in a child’s life. However, the statute has faced criticism from multiple angles.
The Good
The All Families Are Equal Act proposes an entirely new scheme for determinations of parentage when a child is conceived through surrogacy—whether the child is genetically related to both intended parents (gestational surrogacy, where an embryo is implanted into a surrogate mother’s uterus through in-vitro fertilization) or not (either gestational surrogacy with a donated egg and/or sperm, or traditional surrogacy where the surrogate mother’s own ovum is artificially inseminated).
Previously, opposite-sex intended parents would have to make a declaration of parentage in court in order to override presumptions that the surrogate mother and her own partner, if applicable, were the parents of the child. Furthermore, same-sex partners (two gay men, or the female partner of a woman who gave birth) could only establish parentage through adoption. The legislation now provides a streamlined, out-of-court process for intended parents. Rather than requiring a judicial application, intended parents will be able to use a mail-in application to register themselves as the legal parents of their child.
According to the Ontario government, this shift will provide greater clarity and certainty during the surrogacy process, while offering greater legal security to parents in the event of a medical emergency. Indeed, the Bill was first introduced as Cy and Ruby’s law. Named for the children of Jennifer Mathers McHenry and her wife Kristi, the Act sought to rectify situations such as theirs: if Jennifer, the genetic mother and carrier of the child, had died during her difficult childbirth, Kristi would have been in a legally precarious situation and may not have been able to take their baby home.
Ontario New Democrat MPP Cheri DiNovo introduced the Bill that, in two short months, passed into law as the All Families are Equal Act. || (Source: Christopher Kastarov // Huffington Post)
The All Families Are Equal Act explicitly recognizes that ovum and sperm donors are not the parents of a child; however, the legal status (or lack thereof) of intended parents and donors requires corroboration through a written pre-conception agreement. The legislation also allows for up to four people to be registered on a child’s birth certificate—a codification of the Ontario Court of Appeal’s 2007 decision in AA v BB.
This legislation, as proclaimed by its title, aims to provide equal legal treatment for parents with non-“traditional” family structures or family building processes. Its elimination of gendered legal terms such as “mother” and “father” in favour of “parent” is an important semantic shift towards normative inclusion of non-heterosexual parental setups. Moreover, fertility law experts such as Sara Cohen applaud the act for requiring surrogate mothers to have independent legal counsel in the negotiation of the pre-conception agreement, which may help guard against the exploitation of vulnerable women.
The Bad
However, certain aspects of this new legal regime may have unintended consequences or even run counter to the Act’s stated goals. First, the statute renders all surrogacy contracts unenforceable, whether they concern gestational or traditional surrogacy. Unlike in Quebec, where all surrogacy agreements are absolutely null as per article 541 of the Civil Code, Ontario courts had previously been willing to enforce gestational surrogacy contracts.
As healthcare lawyer Lisa Feldstein notes, surrogacy contracts are sophisticated legal instruments that contain numerous provisions relating to contingencies beyond parentage. For example, provisions may stipulate who will be allowed in the delivery room, who the surrogate should give the child to in the event of the intended parents’ divorce or death, how many embryos will be transferred to the surrogate’s womb, and obligations for support of the surrogate that the intended parents will assume should she require pre- or post-birth bedrest.
Feldstein fears that without the judicial oversight that accompanies the possibility of enforcement, the rights and interests of all parties will not be sufficiently protected. Given how the demand for surrogate mothers dwarfs supply in Canada, where surrogate mothers cannot be paid beyond reimbursement for reasonable expenses, Feldstein argues that rendering all agreements unenforceable will erect additional barriers to family-building by creating a chilling effect. Further, such barriers can only increase socioeconomic inequality in access to reproductive services, as wealthier would-be parents turn to more permissive jurisdictions abroad.
Healthcare professionals should not have to (and are not equipped to) interpret legal surrogacy agreements, particularly in the context of emergency medical situations.
Moreover, the All Families Are Equal Act provides that until the child is seven days old, the surrogate mother must be consulted as a substitute-decision maker in the event that medical treatment is necessary—unless the intended parents and the surrogate have stipulated otherwise in their (purportedly unenforceable) pre-conception agreement. Both Cohen and Feldstein note that healthcare professionals should not have to (and are not equipped to) interpret legal surrogacy agreements, particularly in the context of emergency medical situations. Feldstein argues that this provision undermines the equality thrust of the Bill, as it treats parents who use a surrogate differently from other parents by giving legal weight to the surrogate’s post-birth medical opinions.
Cohen notes further that the “predictability” of the new, streamlined parentage process comes at the price of increased potential for fraud, duress, and undue influence. Without judges scrutinizing pre-conception agreements before declaring parentage, Cohen fears that marginalized women may be coerced into surrogacy. Further, the adoption process may be short-circuited by would-be parents who find an already pregnant woman and subsequently back-date a pre-conception agreement for “traditional surrogacy”. Cohen argues that judicial checks are necessary to determine whether independent legal advice has indeed been provided to all parties and whether the child was conceived through a process that corresponds to the written arrangement.
Given Cohen’s concerns and the underlying rationale for Canada’s criminalization of commercial surrogacy (preventing the bodily exploitation of women), perhaps there are compelling reasons for maintaining a judicial declaration system for establishing parentage. Cohen argues that an administrative scheme like that in Illinois may provide a middle ground between judicial processes and the “mail-in” system, while Feldstein holds that legitimacy could be enhanced by requiring consent to be recorded on a prescribed legal form.
While the All Families are Equal Act improves access by streamlining the process, experts warn that the lack of enforceability or judicial review puts women in vulnerable situations at risk of undue influence, fraud, and exploitation. || (Source: Jan Truter // Flickr)
Cohen outlines two final concerns about the legislation: first, that the scheme doesn’t allow children born through surrogacy to have the same privacy in court processes as do adoptees (further undermining the statute’s equality rationales), and second, that the Act permits sperm donation through sexual intercourse. Cohen argues that this legal development, coupled with the recognition that donors are not parents, may allow biological fathers who simply may not want to be legal fathers to “opt-out” of parentage through a pre-conception agreement. Cohen fears, in particular, coercion that may result in a woman signing such an agreement, given the lack of judicial oversight.
Further, this provision creates serious inequality between men and women. Though ovum donors are not legally recognized as mothers, a woman cannot, when a child is conceived through sexual intercourse, simply contract out of parentage by creating a pre-conception agreement that designates her a traditional surrogate. Such a development would be dangerous, as it could leave children with no legal parent!
A simple remedy to this potential coercion and actual gender inequality would be not to recognize sperm donation through sex. At-home, “artisanal” artificial insemination is easy enough to do if both biological parents are serious about “non-traditional” family building, and it is unclear how much true, premediated “sperm donation” occurs via sexual intercourse.
Though ovum donors are not legally recognized as mothers, a woman cannot, when a child is conceived through sexual intercourse, simply contract out of parentage by creating a pre-conception agreement that designates her a traditional surrogate. Such a development would be dangerous, as it could leave children with no legal parent!
The Ugly
As expected, there have also been no shortage of reactionary, irrational critiques of the All Families Are Equal Act. Conservative activist organizations such as REAL Women of Canada and the ARPA fear the end of the heteronormative “traditional family”. They argue, respectively, that multiple parents simply “will not be able to agree” on parenting decisions (irrelevant to the legal status of parentage), and that the statute tears at the legitimacy of traditional families by recognizing “non-families” (a blatantly homophobic statement). The ARPA, further, argues that the Act is full of semantic mistakes; for example, the Act references the unimpeachably male fluid of sperm in the provision rendering donors non-parents, while generally avoiding the gendered term of “father”. Clearly, the ARPA’s legal counsel, in its thinly veiled homophobia, has ignored the fact that legal parentage has always been distinct from biological realities.
Same-sex couples, whom have had the right to marry in Canada since 2005, often make use of donors and surrogacy to have a child of their own. The All Families are Equal Act grants greater access to these services and helps solidify a legal parental relationship between same-sex partners and their children. || (Source: Huffington Post)
The Potential
Despite its hysteria, REAL Women correctly notes the rapidity of the Bill’s life-cycle: NDP MPP Cheri DiNovo introduced the private member’s Bill a mere two months before it was passed. While legislative efficiency is to be admired at times, perhaps this lightning-quick process allowed lawmakers to skate over some of the critiques raised by experts such as Cohen and Feldstein. In fact, Feldstein presented certain concerns about the statute to the Standing Committee on Social Policy in October, but her suggestions were ultimately not incorporated into the final Bill.
Hopefully, the normative value of the All Families Are Equal Act, in addressing many forms of legal discrimination based on family status, will not overshadow the reasoned critiques raised above. This legislation is a step in the right direction for Ontario’s parentage regime. However, it should be amended to allow for, at the very least, enforceability of certain contractual arrangements and a medical decision-making model that maps onto both the legal reality of parentage and the equality goals of the Act itself.
McGill Journal of Law and Health 