The All Families are Equal Act: Does it Fulfill its Potential?

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.

Cheri DiNovoOntario 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.

8642605447_f84e663fa6_zWhile 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.

slide_480772_6580790_compressedSame-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.

Medical Marijuana’s Liberalization and the Legislative Purgatory of Recreational Use

Posted By Colleen Morawetz

As Canadians await the federal government’s plan to legalize and regulate cannabis, expected next spring, this summer has seen unprecedented growth in the dispensary market. In cities such as Vancouver and Toronto, a booming industry of “compassion clubs” has sprung up over the past few months, with some commentators describing a “pot-shop bubble” to rival soaring housing prices.

Dispensaries have the veneer of operating in a legal grey zone, with purported medical professionals “prescribing” medical marijuana for eager customers, but this medical aura can only be for marketing purposes; Health Canada makes it clear that these storefront businesses are strictly illegal. At the same time, beyond the booming market for recreational cannabis, the legitimate medical marijuana system in Canada has experienced dramatic shifts in the past year.

Circumscribed exceptions to the Controlled Drugs and Substances Act have allowed physicians to prescribe marijuana for medical purposes since 1999. In 2013, the Government of Canada implemented the Marihuana for Medical Purposes Regulations (MMPR), creating conditions for licensed producers to compete for medical marijuana consumers in a commercial market.

The most recent judicial challenge to this scheme occurred in a February 2016 Federal Court of Appeal decision, which found that limiting medical marijuana production to Canada’s licensed producers (currently 35) unjustifiably limited patients’ constitutional rights to life, liberty and security of the person by subjecting them to market-driven pricing structures.

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Many Canadians are thrilled for the Liberal leadership to follow through on a long-awaited legalization plan for recreational marijuana use and distribution. || (Source: Flickr // Cannabis Culture)

Since Allard struck down as invalid the entire MMPR, the federal government responded by implementing the Access to Cannabis for Medical Purposes Regulations (ACMPR), which came into force on August 24. The part of the new regulations most worthy of attention is the provision on self-production: individuals with a medical document from a health practitioner may now choose to produce a limited amount for their own purposes, designate another individual to produce it for them, or stick to the mail-order system offered by licensed producers.Meanwhile, in July, the Globe and Mail published the results of a large-scale investigation as to the safety of dispensary-obtained marijuana, finding that one-third of cannabis samples from nine storefronts in Toronto would not pass a Health Canada test for safe levels of mould, harmful bacteria, pesticides and other contaminants. This investigation was novel due to its illegality; at the time of the investigation, federally licensed laboratories were banned from testing marijuana samples, and the newspaper did not disclose the identity of lab used.This ban on testing caused particular concern for patients with compromised immune systems or parents who desired extra confirmation as to the safety of the cannabis oil extract they were giving to their children to treat the symptoms of conditions such as epilepsy and brain tumors. Health Canada had safety standards in place for federally regulated medical marijuana producers; however, patients and caregivers wanting to administer a prescribed dosage through cannabis oil must produce it themselves from dried leaves – with no way of testing the finished product under the ban.

Two weeks after the publication of the investigation, according to the Globe, Health Canada sent an urgent memo to federally accredited labs, asking whether they would be willing to start testing for the public under new federal regulations. As of September, 17 such labs had offered to provide independent testing of marijuana for medical purposes.

Even in the face of these significant changes in medical marijuana laws, the nagging question remains as to why we should care. Surely, the logic goes, the promised legalization of marijuana for recreational use will render all of these laws and regulations useless within the next year?

5377506106_060a578a86_zThe current state of federal legislation in Canada means that medical marijuana has not undergone sufficient quality testing before reaching the patient, putting immunocompromised users at risk. || (Source: Flickr // Dank Depot)

However, the details of the legalization plan remain murky as of yet. Although 30 000 Canadians weighed in during an online consultation this summer, it remains to be seen how much (if at all) the responses will inform the recommendations of the marijuana task force, which is on track to issue a report to the federal government in November. It is also unclear whether the task force will incorporate the set of recommendations issued by the Canadian Medical Association in September.One of the CMA’s critical suggestions is for home cultivation of marijuana, other than for medical purposes, to remain prohibited. This recommendation essentially calls for a two-tier medical/recreational cannabis system, with access to the drug for recreational purposes remaining somewhat constrained. The ACMPR, therefore, has the potential to affect the production patterns of cannabis in Canada well into the future.

Of greater concern, perhaps, is the lower profile decision of Health Canada to allow for laboratory testing of cannabis only if it was obtained for medical use. The Globe’s investigation discovered contaminants in much of the cannabis sold in Toronto’s illegal dispensary market, and it is fair to assume that the situation in other cities is no different.

Among its objectives, Health Canada “strives to … prevent and reduce risks to individual health and the overall environment,” indicating that harm reduction is a core tenet of the department’s mandate. However, its measures must also be allowable by law, and, one would assume, toe the party line in terms of current moral-legal narratives.

While allowing for testing of cannabis not proven to be obtained for medical purposes is technically compatible with cannabis itself being illegal, it certainly seems to question the moral legitimacy of the criminal prohibition. But how strong is this claim to moral legitimacy, when the Government of Canada has announced imminent legalization?

If Health Canada is to properly “strive” for its objective, perhaps certain interim measures should be taken by the federal government to allow for regulation in this legislative purgatory, where harsh local sanctions such as raids seem more and more incongruous with the legalization policy proposal.

Cannabis-Counter-Harborside-DispensaryEnsuring the quality of the product with the safety of users in mind, marijuana dispensaries will stand alongside pharmacies and liquor stores as licensed distributors of controlled substances. || (Source: Flickr // Dank Depot)

Though the boundary between medical marijuana and cannabis obtained for recreational purposes may prove enduring in the new policy framework, the present moral uncertainty could benefit from allowing for licensed testing of all cannabis. As Vancouver city councilor Kerry Jang notes, speaking from a city that has started its own licensing of dispensaries absent of federal guidance, the federal government should no longer “hid[e] behind a legal shield” and avoid giving proper guidance for regulation and control.

After all, what is the point holding out on harm reduction measures when the political tide has already turned?

Still Not Good Enough: The Inequities Embedded in Canadian Parental Leave

Posted By Colleen Morawetz

15 years ago, the “maternity” leave system in Canada was overhauled to create a more flexible scheme. Both mothers and fathers had been able to access paid leave and allocate it between themselves since 1971, but this parental leave was only available for 10 weeks and was not utilized by the majority of Canadian fathers. The 2001 reforms expanded the availability of parental leave, distinct from the 15-17 weeks reserved for biological mothers’ pregnancy and maternity leave, from 10 to 35 weeks. This reform was heralded as a major step forward for gender equality, as it went further in recognizing the caregiving role played by both parents. Maternity leave had long been recognized as being important for both the mother and the child’s physical health; by expanding the availability of benefits, the new system allowed for the more recently recognized mental health benefits associated with parental-child bonding and work-life balance to be more available to fathers as well. Like all social programs, parental leave can be analyzed through the lens of health equity: has the new legislative scheme distributed these positive health effects fairly amongst different segments of society? Though it is difficult to isolate any one social policy’s effect on social determinants of health, a closer analysis of Canada’s parental leave laws in practice reveals worrying distributional issues.

Parental leave in Canada operates through several laws and informal mechanisms. Job security under federal and provincial labour codes formally guarantees that parents can return to their positions following leave; this security simultaneously encourages leave and strengthens labour force attachment for new mothers in particular. Income replacement, on the other hand, is administered by Employment Insurance (EI) in all provinces except for Quebec, which established the Quebec Parental Insurance Plan (QPIP) in 2006. The statutory incentives in labour codes and income replacement schemes encourage sectors of parents who would otherwise not take parental leave following the birth or adoption of a child: particularly low-income individuals who cannot afford to forgo any pay and high-income individuals whose salary and the desire for career advancement provide powerful incentives to keep working. Furthermore, fathers historically have been disincentivized from taking leave both due to the wage gap (making it more profitable for a woman in a heterosexual couple to forgo her full income) and, more importantly, as a result of gendered caregiving roles. Now, “parental” leave that can be shared by either parent (up to 35 weeks through EI, up to 37 weeks through the QPIP) and “paternity” leave that is reserved for biological fathers (up to 5 weeks under the QPIP) are meant to encourage fathers to take time off following the birth or adoption of a child.

Commonly cited rationales for parental leave include increasing mothers’ labour-force participation, encouraging parental work-life balance during the first year of a child’s life, and providing financial support to new parents. Additionally, several physical and mental health benefits are attached to properly administered leave programs. Throughout Canada, the combination of maternity and parental leave allows biological mothers to physically recover from pregnancy and to breastfeed children for the period of time recommended by the WHO. Other indicators of children’s health, including infant mortality rate and the rate of vaccination, are positively correlated with the availability of leave benefits. Moreover, the mental health of both children and parents is impacted by the amount of time parents take off following birth or adoption. For mothers in particular, congruence between the amount of time women would like to take off work and the amount of time they are actually able to has been found to produce the greatest mental health benefits postpartum or post-adoption; the flexibility of parental leave in Canada since 2001, which allows parents to split the amount of leave available to them, may help in achieving this goal of personal balance.

However, parental leave in both the EI and the QPIP schemes, though more flexible and generous since 2001 and 2006, reflects existing inequalities along both gender and socioeconomic lines. For heterosexual couples throughout Canada, the customizable distribution of parental leave ignores the wage gap between men and women. Since parents are reimbursed for 55% of their usual earnings only up to a ceiling of $50 800 throughout Canada, the higher-earning parent (often the father) is still incentivized to keep working and cede his potential leave time to his partner. Embedded gender roles and stereotypes continue to influence the lower take-up of parental leave amongst Canadian fathers. In Quebec, the distinct, non-transferrable paternity leave has incentivized more fathers to take time off following birth or adoption. However, empirical results of the post-2006 program suggests that many fathers do not use their full paternity benefits and the majority of paternal leave weeks are still allocated to the female partner. Furthermore, single-parent families in Quebec – the majority of which are headed by women – are not able to access these non-transferrable benefits.

Moreover, a close analysis of parental leave reveals, in practice, differential benefits along socioeconomic lines. In general, the 55% wage-replacement level offered through EI does not make parental leave accessible to low-income individuals who rely on their full income to cover living expenses. In Quebec, the more flexible system allows parents to choose to take fewer weeks of leave in exchange for higher levels of income replacement. However, even 75% replacement is not sufficient for many low-income and single-income families.

Additionally, many employers offer “top-ups” as part of their compensation packages, meaning that employees may be reimbursed the remaining 25-45% of their earnings during their period of leave. In 2010, employees in Quebec were five times more likely than those in other Canadian provinces to receive these benefits. However, “top-ups” are generally more available to higher-income individuals, leaving low-income earners with base statutory levels. Furthermore, parents in the non-standardized workforce (disproportionately women) are both unable to access these employment benefits and face difficulty accessing statutory levels across Canada. Though qualification for leave benefits in Quebec requires $2000 worth of insurable income rather than the 600 hours required under EI, many students and non-standardized workers still face difficulty accessing even the statutory amount of compensation. Additionally, since these “top-ups” are not governmentally regulated, many employers provide these benefits only to their female employees, thus perpetuating the gender inequality of the leave system in practice.

Given the academic consensus that parental leave is both important for parents’ and children’s health and has the potential to combat gender inequality in the labour market, we should find these discriminatory effects of the EI and QPIP systems unsettling. This legislative scheme, however, doesn’t operate in a vacuum: the availability of social support structures such as compassionate care benefits, parents of critically ill children (PCIC) benefits and public childcare interact with and affect parental leave in complex manners. For example, among heterosexual couples in Quebec, the majority of fathers claim benefits at the same time as the mother, whereas in other provinces, fathers who claim benefits usually do so in staggered intervals with their partners. This important distinction suggests that the availability of publically provided childcare (which, despite serious rationing issues, is nominally open to all parents in Quebec) carries at least the same weight as physical and mental health considerations when parents consider how to allocate their statutory benefits.

Furthermore, many scholars advocate more flexibility in the time frame in which parents can access benefits. Parental leave weeks cannot be reserved for a period beyond the first year of a child’s life. Consequently, parents cannot access compensated and job-protected leave to care for sick children over a year old unless they meet the more stringent eligibility for compassionate care benefits under EI. This system has been criticized, as children from lower-income families are less likely to receive parental home-care after parental leave benefits expire.

Like all social programs, parental leave is tied up in a patchwork of legislation that aims to provide financial support for Canadian families. Through the EI 2001 reforms, and more dramatically through the 2006 introduction of the QPIP, parental leave has become steadily more flexible and available for all Canadian parents. However, until the introduction of leave incentives that counteract embedded gender inequality in the workplace and the inability of low-income parents to take a meaningful period of leave, the health benefits for both parents and children will continue to be inequitably distributed amongst Canadian families.

Bentley v Maplewood: the Right to (be Left to) Die?

Posted By Colleen Morawetz

In February 2015, the Supreme Court of Canada struck down a blanket ban on physician-assisted suicide in Carter v Canada. In light of this landmark case and the reality of our country’s rapidly aging population, questions of end-of-life care and patient autonomy have been pushed to the forefront of Canada’s political and legal scene. Less than a month after the Carter decision, the British Columbia Court of Appeal released Bentley v Maplewood Seniors Care Society, a judgment that applied the common law tort of battery to the so-called “right to die”. The court in Bentley grappled with such thorny topics as how to effectively honour an individual’s wishes once she loses most cognitive capabilities, what legal steps she must take to avoid potential ambiguity in her intentions, and if caregivers are legally required to let their patients die. Though this decision did not concern physician-assisted suicide, its subject matter is essentially an operationalization of the same broad principles – and all the ethical challenges they import.

The Trial Court Decision

In 2013, Mrs. Margaret Bentley’s family filed a petition to the Supreme Court of British Columbia, seeking a declaration that would prevent the staff at Maplewood Seniors Care Society from giving her food and water. Mrs. Bentley is an 83-year-old woman suffering from the seventh stage of Alzheimer’s disease. She has not spoken since 2010 and no longer recognizes family members.

Through her work as a nurse, Mrs. Bentley had seen how Alzheimer’s patients descend into “vegetative” states. As a result, in 1991, she wrote and signed a “Statement of Wishes” requesting that if she were ever in a state where there was “no reasonable expectation of [her] recovery from extreme physical or mental disability”, she be “allowed to die and not kept alive by artificial means or ‘heroic measures’”. The Statement, signed in the presence of two witnesses, appointed her husband to serve as her “proxy for the purpose of making medical decisions” should she lose the mental faculties required for legal consent. At the Maplewood Seniors Care Society, where Mrs. Bentley has lived since 2009, her disease has progressed to the point where she cannot feed herself without manual assistance. Her family argued that the Maplewood caregivers’ manual feeding contradicts Mrs. Bentley’s statement.

The BC Supreme Court upheld the common law presumption, encoded in such legislation as the BC Representation Agreement Act, that every adult is capable of making decisions about personal and health care. Only when an adult is proven to be incapable of consent will decision-making power transfer to another person. Based on expert testimony, the trial judge found that Mrs. Bentley still had the capacity to consent to being fed, and that opening her mouth and accepting food from a caregiver was a behavioural manifestation of consent. Furthermore, even if she had been unable to consent, the judge’s finding that feeding constitutes “personal care” as opposed to “health care” means that advance directives have no binding force. Personal care directives fall outside the narrow circumstances in the Health Care (Consent) and Care Facility (Admissions) Act that permit refusal of health care. Third, the judge found the Statement of Wishes to be too ambiguous to force the caregivers at Maplewood to stop feeding Mrs. Bentley, especially in light of a later statement that used slightly different wording. Finally, the judge ruled that even if there could be a substitute decision-maker, he wouldn’t have the legal authority to make a decision care providers believe would be medically inappropriate.

The Appeal

Of the multiple reasons for which the trial judge dismissed the original petition, Mrs. Bentley’s family appealed on the grounds that he did not properly consider the tort of battery. They argued that the Maplewood caregivers’ “prodding” of Mrs. Bentley’s mouth with a spoon at mealtimes constituted non-trivial contact. The only defense to the tort of battery is, of course, consent. As with consent defined in the legislative context, consent in the tort of battery is presumed for all adults.

In looking specifically at this tort, the Court of Appeal again found that Mrs. Bentley had the capacity to consent, and that by opening her mouth, she was communicating approval to be fed. Furthermore, it ruled that consent in the context of battery could not be delegated or communicated in advance: it arises in the present. The Court of Appeal affirmed the lower court’s dismissal of the petition, finding consent and thus no actionable tort of battery.

Discussion

What might the Bentley appeal decision, employing the same reasoning as the trial court, mean for “right to die” cases? In maintaining a restrictive definition of advance consent in decisions on medical care (which, in itself, is narrowly defined and contrasted with personal care), the BC Court of Appeal invoked subtle policy arguments. The court noted that “[i]t is a grave thing to ask or instruct caregivers to stand by and watch a patient starve to death.” It cloaked this concern in the existing BC legislative framework: in particular, within the Adult Guardianship Act that would characterize Maplewood’s staff as neglectful should they withdraw personal care assistance. This concern is undoubtedly legitimate: if the line between “personal care” and “medical care” collapses, and patients can give valid consent to be left to starve, will personal caregivers be responsible for overseeing this slow and painful process?

Furthermore, this question of advance consent takes the discussion far beyond the parameters of Carter, where the patient in question had full mental capacity. The Court of Appeal noted that “consent in the here and now” is the proper mechanism to give full expression to patient autonomy. The question thus arises about how the issue of a “right to die”, or – more narrowly – physician assisted suicide, will apply to individuals suffering from diseases that affect cognitive functioning. How will the autonomy of these patients be meaningfully protected? The Court of Appeal underlined that Bentley is not a constitutional case, and it limited its discussion to the narrow tort of battery. However, the legal questions surrounding advance consent and how provinces will adapt their current “medical decision-making” legislative webs to the post-Carter era remain open.

Whose Kid Is It Anyway? Parentage Contracts for Surrogacy in Quebec

Posted By Colleen Morawetz

Third-party reproduction is a hot-button issue for ethicists and legislators alike. Throughout Canada, it is legal for a woman to carry someone else’s child, with the understanding that she will yield the child to its legal and/or biological parents upon its birth. However, the governing federal legislation, the Assisted Human Reproduction Act (AHRA), states that it is categorically illegal to pay a woman for these surrogacy services.

Beyond illegal or ambiguously legal remuneration, which usually occurs informally for fear of leaving a damning “paper trail”, the question of formal agreements remains. Absent legislative prohibitions, a surrogacy contract could cover a host of topics, including payment, reimbursement, stipulations as to prohibited conduct for the surrogate mother during the pregnancy, provisions establishing legal parenthood for the intended parents, and the requirement for the surrogate mother to relinquish the child upon its birth. Contractual stipulations regarding surrogacy touch upon important ethical questions of bodily autonomy, the nature of a legal family, and the potential for abusive clauses in situations of unequal bargaining power.

Section 6(5) of the AHRA allows provinces to legislate on the validity of all types of surrogacy agreements. In Quebec, Article 541 of the Civil Code states that “[a]ny agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null.” This article prohibits contracts for both natural surrogacy (where a surrogate mother’s own eggs are fertilized using donated sperm) and gestational surrogacy (where both eggs and sperm are donated, and the resulting embryo is implanted in the surrogate mother’s uterus). Within the Code, absolute nullity is reserved for arrangements that, in whole or in part, violate the norms of public policy. The perceived violation aligns with ethical concerns about surrogacy (altruistic and commercial): that a vulnerable woman may be exploited into “renting” her uterus for remuneration and/or forced to give up a child that she has carried to term, and of whom she may be the biological mother. Such concerns are undoubtedly serious, and such exploitation would indeed be an affront to moral sensibilities.

However, the blanket ban on surrogacy contracts has undesirable effects on intended parents in Quebec. Not only can intended parents not recruit surrogate mothers through financial incentives, but even establishing parentage is a legally confusing process. Notwithstanding an a priori intention of all adults involved, a surrogate mother might refuse to give up the child upon birth. Such a case would likely devolve into a court proceeding, where the intended parts cannot argue persuasively – without the benefit of an agreement indicating intent – against the presumption that the birth mother is the mother of the child.

For intended parents, some of whom may find the adoption process unattractive in part due to the potential for a biological mother’s change of heart, this provision is enough to cause serious anxiety. Filiation of children conceived naturally occurs by blood and through the presumption of paternity (Article 525 CCQ), and yet even genetic relation doesn’t clinch the legal maternity of the intended mother in cases of gestational surrogacy (Article 538.1 CCQ). In cases of natural surrogacy, where the surrogate mother is the biological mother, and/or cases where sperm has been donated by someone other than the intended father, the question of parentage becomes all the more pressing.

A 2009 Cour du Québec case concerning parentage in natural surrogacy was the first legal test of Article 541 CCQ. The intended parents and the surrogate mother had agreed to leave the mother’s identification blank on the baby’s birth certificate. The biological father planned to then consent to his spouse’s adoption of the child, thus completing the act of filiation without a declaration of parentage. However, Justice Dubois concluded that although the intended parents were raising the child, and that the spouse is the de facto mother due to uninterrupted possession of status, the intended parents were attempting to circumvent the law. Rejecting the intended mother’s Request for Adoption, Justice Dubois left the maternal filiation part of the child’s birth certificate empty. The judgment noted the importance of deciding matters in favour of the interest of the child (Article 33 CCQ), but that this principle cannot negate the illegality of absolutely null agreements.

However, there is some question about whether Quebec is moving towards abandonment of its blanket ban. Four subsequent Cour du Québec cases reversed course on the 2009 decision; the court in these cases allowed the intended parents to adopt their child (Note: granting adoption is not the same as declaring parentage; though the two statuses import the same rights and responsibilities, they occupy different levels on a symbolic hierarchy). Furthermore, scholars such as Professor Alain Roy note that the “best interest of the child” principle urges abandonment of the ban, as it is unclear who is responsible for a child upon birth. This is an especially disturbing ambiguity in the case of disabled children, who, on the flipside of the conventional surrogacy horror story of the surrogate mother claiming the child, may be renounced by their intended parents.

Moreover, many other provinces in Canada have (cautiously) more permissive approaches to establishing parentage, while still not recognizing binding surrogacy contracts. Ontario, Saskatchewan and New Brunswick have not introduced specific legislation, but their courts have established parentage in favour of the intended parents by judicial order. Alberta and Nova Scotia have reformed their family law statutes to give some weight to agreements of intention and introduce a standard process for establishing parentage. British Columbia goes furthest, not even requiring judicial orders to establish parentage in most cases. The BC Family Law Act requires written agreement that the surrogate mother will surrender the child to the intended parents. After birth, a standard statement is filed, and judicial intervention will only be required if a dispute arises.

Finally, increasing popularity of “surrogacy tourism” may be another argument for Quebec to relax or modify its ban. Many couples find it easier to turn to certain parts of the United States or overseas – often developing countries with little regulation on the matter – than to deal with the stress of both finding an altruistic surrogate and not having control over the child’s parentage upon birth. It is unlikely that surrogacy tourism will ever be eliminated while commercial surrogacy remains illegal throughout Canada, as the supply of altruistic surrogate mothers (who can only be reimbursed for ancillary pregnancy expenses, at best) will always be outstripped by demand. However, if the ethical issue in surrogacy is the exploitation of vulnerable women, then discouraging surrogacy tourism by placing higher legal value on parentage agreements may be a preliminary means of harm reduction.

Short of considering parentage agreements to be binding, or even introducing streamlined administrative procedures as in BC, Quebec can take certain intermediate steps. As in all other provinces, intended parents should be able to apply for declarations of parentage – beyond adoption. In these requests for judicial orders, parentage agreements should at least be considered proof of intent. Such developments might alleviate anxiety for intended parents and lessen the province’s symbolic disapproval of a legal practice.

Please stay tuned for more information on the 2016 MJLH Colloquium: “Assisted Reproduction: Navigating the Criminalization of Commercial Surrogacy and Reacting to Unexpected Situations”.