Why I Support Cy and Ruby's Bill - New Legal Parentage Framework in Ontario

For those of you who haven't heard, Cheri DiNovo (Ontario NDP Party) has brought a private member's bill, Bill 137 (Cy and Ruby's Act (Parental Recognition)).  When it passes, as it should, and which I have no doubt it will, Cy and Ruby's Act will completely revamp the legal parentage framework in Ontario.  I have received many emails and phone calls asking what I think about the bill, so here it is:

If I had to choose whether to accept Cy and Ruby's Act exactly as it is, or not accept the bill at all, I would be willing to take it exactly as it is, no questions asked.  The inequity and discrimination in the current legal parentage system in Ontario, especially as it relates to two-mom families and to a lesser extent, single mothers, needs to be fixed immediately. I have blogged about this here, been invited to speak about this on Global News' Focus Ontario here, met with Ontario policymakers about legal parentage issues in Ontario, repeatedly lectured on the issue, and even once had the opportunity to briefly discuss this with Andrea Horwath. Ontario is desperately in need of a legislative regime that recognizes that a donor is not a parent only by virtue of the donation, allows both parents in two-mom families to be registered directly on the birth certificate when using a known sperm donor, and brings presumptions of parentage outside of hetero-normative family building.  Cy and Ruby's Act accomplishes these objectives.

Further, Ontario has been very fortunate to benefit from a number of excellent and often groundbreaking legal decisions, which Cy and Ruby's Act takes into account. For example, Ontario courts have recognized three plus parent families, and have determined that there is no need for a genetic connection between any intended parent and a child born through assisted reproductive techniques.   This bill appropriately supports such families, and relies on intention-based legal parentage. So far, I'm all for it.

The harder part is the surrogacy piece.  

A little bit of background:

1.  Currently in Ontario,  gestational surrogacy agreements (where the person carrying has no genetic connection to the child) are seen as largely enforceable, while traditional surrogacy agreements (where the person carrying is genetically related to the baby) are unenforceable. This is in line with pretty much all of the more progressive North American jurisdictions that recognize legal parentage through surrogacy;

2. In Ontario and across Canada, third party reproduction (including and especially surrogacy) is seen as so potentially coercive that payment to a surrogate for her services and payment to someone arranging the services of a surrogate mother are prohibited and punishable by up to ten years in jail and/or $500,000 (whether I think it is appropriate policy to criminalize what a person chooses to do with their body, or whether I believe this is how Canada ought to deal with the potential for coercion is better left for another time); 

3.  There is a lot of surrogacy happening within Ontario. As international borders have closed in India, Nepal, and Thailand over the past year or so, the number of international gestational surrogacies happening within Ontario (i.e. international intended parents and Ontario gestational carriers) seems to have greatly increased. This is big business!; and

4. Cy and Ruby's Act equates, or at least conflates, traditional surrogacy with gestational surrogacy. I don't necessarily have an issue with traditional surrogacy, but I am aware that traditional surrogates tend to change their minds more frequently than do gestational carriers.
 
Within the above context, I am uncomfortable that Cy and Ruby's Act provides that an agreement, including a prototypical form surrogacy agreement provided in the regulations, may be used as evidence of the surrogate's intentions, without requiring that she first obtain independent legal advice (NB: the timing is important - a surrogate takes much risk during the pregnancy and should be appropriately counselled prior to entering into a surrogacy agreement).  

To address this, I respectfully suggest two small, friendly amendments to encourage better and more ethical practices that I believe will ultimately provide more secure families. They are simple:

1. provide that the surrogacy agreement may not be used as evidence of a surrogate's intention unless she obtains independent legal advice about the agreement prior to its execution; and

2. instead of providing a form prototype surrogacy agreement in the regulations (i.e. oversimplifying the process and trying to make surrogacy "one size fits all"), require that surrogacy agreements meet certain criteria to promote well-thought out arrangements and meaningful negotiations and consent.

Of course, one of the difficulties in evaluating the bill as it relates to surrogacy is that its success or failure is largely reliant on a prototype form surrogacy agreement which is not currently available for discussion, as it is to be provided for in the regulations.  On the face of it, a prototype agreement sounds like it could help people without access to legal services. However, given the complexity of surrogacy and the competing interests of the individual parties, it's hard to believe that a form agreement would be sufficient, meaningful, and take into account the intricacies and differences between the many different situations. For example, traditional surrogacy arrangements between friends looks very different than do gestational surrogacy agreements with international intended parents, and that is just the tip of the iceberg (think about what issues we want to consider for someone transferring two or three embryos, or where an intended parent is Hepatitis C positive, or when the surrogate is in the process of separating from a partner or is polyamorous, or when the parents live abroad and the child will not have access to funded public health care and what this may mean for the surrogate, etc.). Although surrogacy is frequently a beautiful, collaborative process, there is no one size fits all solution, and the parties' intentions are rarely, if ever, exactly aligned.   Further, regulations are unlikely to be quickly or frequently updated, so a prototype surrogacy agreement will soon be outdated and cannot realistically stay on top of current best practices (whether these be legal or medical).  These are probably some of the reasons why no other progressive jurisdiction that recognizes surrogacy has government-provided prototype form surrogacy agreement (although a number of such jurisdictions require certain criteria be met, including independent legal representation, psychological counselling and a required exchange of medical information).
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Regardless, we won't be able to truly evaluate this prototypical agreement until we see it, but we won't see the regulations until after the bill passes, and my limited understanding of the regulatory process is that we (the public) and our respective MPPs will have little opportunity for meaningful contributions during the regulatory process.

Finally, it is insufficient to offer a surrogate independent legal advice only at the end of the process, after the baby's birth (if independent legal advice is offered at all). It is far more appropriate to offer a surrogate independent legal advice prior to conception, before she has undertaken medical and psychological risk.  Unfortunately, in trying to make surrogacy accessible, I am concerned that the bill inadvertently encourages bare minimum standards as opposed to best practices, and will unintentionally lead to insecurity in the very families it is trying to protect.

So, back to the original question – do I support Cy and Ruby’s Act? Unequivocally, yes.  Ontario cannot continue one more day with such inequities in our families. I sincerely hope, though, that the Ontario government will deal with family building through surrogacy in a way that promotes meaningful and informed consent, respect for women, and best practices. At the end of the day, that is the only way to make truly secure families through surrogacy, and to do it ethically. 

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I'm no legislative drafter, but here are what my proposed amendments would look like (I would leave the rest of the bill as is). The reference to independent legal advice for a surrogate could potentially be dealt with in the regulations, but I have included it within the bill itself for the reasons mentioned above.