We have a lot to celebrate. For a long time now, we have hung our heads in collective shame about the gross discrimination and lack of family security and recognition provided to any family that uses donor gametes (eggs and/or sperm) or donor embryos to conceive a child. The discriminatory law was particularly egregious in the case of two-mom families but was problematic for many types of families. The All Families Are Equal Act (the “Act”) rectifies Ontario's discrimination, allows for non-heteronormative presumptions of parentage (for the most part) so that a non-carrying parent need not adopt their own child, and provides much needed clarity that a donor is not a legal parent.
However, along with these important and positive steps, the Act touches on other aspects of family building in Ontario that have not been discussed in the media and warrant greater examination. In particular, with the notable exceptions of requiring a written surrogacy agreement and independent legal advice for all parties involved (both of which I fully support!), the All Families are Equal Act makes some drastic changes to surrogacy law in Ontario that I believe are misguided and ought to be reconsidered.
Let's look beyond the soundbytes and the media headlines, and see what the Act actually says.
How the All Families are Equal Act (Bill 28) Hurts Surrogacy in Ontario:
1. The All Families are Equal Act does not distinguish between gestational surrogacy and traditional surrogacy, and makes all surrogacy arrangements unenforceable.
Gestational surrogacy is where the person carrying the fetus on behalf of someone else has no genetic connection to the fetus, and can only be achieved using in vitro fertilization (IVF). Traditional surrogacy is where the person carrying the fetus on behalf of someone else has a genetic connection to the fetus, and can be achieved through insemination (at home or in clinic) as well as IVF using the surrogate's own ova. The empirical evidence (although incomplete) and certainly the anecdotal experience is that almost all of the surrogacy happening in Ontario is gestational (I would guesstimate at least about 95%), and about half of the intended parents in my practice are cisgender male same-sex couples. As a rule, gestational surrogates almost never change their minds regarding the parentage of the child, while traditional surrogacy is frequently far more volatile and risky.
Prior to the Act, we understood that gestational surrogacy agreements in Ontario were largely enforceable, while traditional surrogacy agreements were not (this is in line with many progressive Canadian and US jurisdictions). This meant that in the extremely rare situation of disputes between the parties about parentage, Ontario courts could be expected to uphold a gestational surrogacy agreement, but not a traditional surrogacy agreement. The All Families are Equal Act, though, specifically legislates that any surrogacy agreement, whether gestational or traditional, is unenforceable (although it may be used as evidence of intention). Further, if there is a dispute between the parties as to the parentage of the child, the court is legislated to determine parentage based on the best interests of the child. By failing to distinguish between gestational surrogacy (where pre-conception intention has applied) and traditional surrogacy (where the family law ideal of the best interests of the child has applied), The All Families are Equal Act makes gestational surrogacy as legally precarious as is traditional surrogacy. This is problematic both for the parents, who no longer have the security they previously enjoyed, but also for a gestational surrogate who may want to enforce an agreement as against the intended parents but may no longer be able to do so as a result of this legislation.
Supposedly, the All Families are Equal Act is based on British Columbia law. However, the proposed Ontario legislation is not in accordance with the B.C. legislation, which does not provide that a surrogacy agreement is unenforceable and does not require parentage disputes in surrogacy to be determined on a “best interests of the child” test. In this regard, the Act is, unfortunately, more in line with less progressive jurisdictions such as Alberta, and is a serious loss for all parties involved in gestational surrogacy in Ontario, resulting in less secure family building and likely, more unnecessary litigation and expense. This aspect of Ontario’s proposed legislation should be rectified by simply removing the statement that surrogacy agreements are unenforceable.
2. The All Families are Equal Act follows an adoption and not third party reproduction Model, which will lead to greater confusion at the time the child is born.
The All Families are Equal Act legislates that a surrogate (gestational and traditional) has at least seven days to change her mind about parentage, and requires joint medical decision making between the parents and the surrogate in the interim (unless the surrogacy agreement, which is unenforceable (?!), requires otherwise). This is an anomaly that seems to come out of left field, based on a model more akin to adoption than third party reproduction. How are Ontario hospitals going to treat a surrogate under this Act in terms of the consent required to treat a child after birth? What happens when there is a dispute between the parties in terms of medical decision making after birth? What happens if the surrogate cannot be found or is unavailable to make medical decisions? Currently, Ontario hospitals largely respect the wishes of intended parents after the birth of a child through surrogacy, but will no longer be in a position to do so for at least 7 days after the child's birth. Is the hospital really in the best position to decide what the surrogacy agreement does and does not say?
3. The All Families are Equal Act Eliminates any Oversight over Surrogacy, Provides an Opportunity for Fraud, and Sidesteps Ontario’s Obligations to Children
Currently in Ontario, all intended parents (regardless of sexual orientation, gender, and number of parents) must bring the same court application (or other legal process) in order to be recognized as the legal parents of a child born through surrogacy. This is true for both gestational and traditional surrogacy. Toronto judges require an in-person hearing, while some other Ontario judges have permitted over the counter applications, saving on costs and court resources. Although not required by statute, Toronto judges frequently also require that DNA evidence be provided. Because Ontario does not require that intended parents have any genetic connection to the child born through surrogacy in order to be recognized as the legal parents, the DNA testing is performed simply to ensure that the conception occurred in line with the pre-conception intention of the parties and in the case of gestational surrogacy, was in fact conceived through IVF. In addition to ensuring that the child was conceived in accordance with the pre-conception intention of the parties, Ontario judges currently ensure the consent of all parties, and ensure the legitimacy of the process, prior to declaring that a person who carried a child is not a legal parent of the child.
The All Families are Equal Act completely eliminates any judicial oversight or other types of checks and balances over surrogacy in Ontario, instead relying on the parents and the surrogate themselves to confirm that the parties had a written surrogacy agreement in place before conception, that all parties had the benefit of independent legal advice prior to conception, to ensure that the pre-conception intention of the parties has been met (i.e. this is a child conceived through surrogacy and not otherwise) and finally that the surrogate consents to relinquishing the child to the parents after the birth of the child. I assume the elimination of any meaningful oversight was a well-intentioned effort to remove any roadblocks to parenthood for intended parents. While the federal government is (wrongly, in my opinion) adding teeth to its legislation that criminalizes compensated surrogacy, Ontario is taking the exact opposite approach, demonstrating that it believes absolutely no oversight of any kind is necessary. This opens the door for fraud and coercion with respect to parentage that I believe has largely been avoided as a result of the judicial oversight, as well as ruining the legitimacy of surrogacy in Ontario. With respect, I believe Ontario is grossly misjudging the on the ground reality, the desperation of people who want children and the vulnerabilities of the parties, and is sidestepping its significant obligations and duties to children and women.
In the course of my practice, on a number of occasions, I have seen first-hand how judicial oversight, or more accurately, the knowledge that a judge will be reviewing evidence before making a parentage order, has meant the difference between fraud and legitimacy. For example, I have had potential clients come in for a meeting requesting that I assist them with a declaration of parentage for an alleged traditional surrogacy where the “surrogate” is about to give birth. When I advise that DNA testing will be required and that a court process will be involved, the potential clients admit that this is not in fact a surrogacy arrangement but that they found a pregnant woman who supposedly wants to relinquish her child and they would like to become the child’s parents without going through Ontario’s adoption process. Of course, in these cases, I have refused the retainer and the plan of the potential clients is thwarted, but had there been no court oversight, Ontario would have made these people the parents of the child. And, of course, what does this mean for adoption in Ontario? As the Act requires no oversight and has no accountability, but instead relies on the parties themselves to register, there would be nothing to stop people from engaging in fraud such as that described above, or to ensure that consent was provided without duress, or to ensure that the extremely minimal requirements required by the Act (such as a written agreement and independent legal advice for all parties) have in fact been met. Surrogacy in Ontario has been legitimate because of this judicial oversight. Although the vast majority of intended parents conduct themselves ethically and appropriately, it is naïve and unrealistic to fail to recognize how desperate some people are to have children, and that some women are in fact vulnerable.
Under the Act, there is no oversight of any kind, and there is no accountability. How easy is it to ask people desperate for a child to register that they had independent legal advice and entered into a pre-conception legal agreement when there is no one verifying the accuracy of this? How easy could it possibly be to coerce a person to sign a registration document when there is no oversight to ensure there was no duress?
My personal belief is that judicial oversight should be necessary and is appropriate in all surrogacy situations when changing the legal parentage of a child from one party to another, whether gestational or traditional. However, if Ontario decides that the process should not involve judicial oversight, there is middle ground to be explored which provides more accountability and therefore may provide further safety and integrity of the system. For example, the State of Illinois has a process in place for administratively registering the birth of a child born through gestational surrogacy. Assuming minimum standards are met (including each party having separate legal representation, medical screening and psychological screening), the parents may register the child’s birth in the name of the parents (with the surrogate’s consent), but only with the certification of each party’s lawyer that the party received independent legal representation and that a written agreement was entered into, and with certification from the IVF doctor that this child is not genetically related to the surrogate and was conceived through embryo transfer. At least in this way, someone is accountable, even if such a system is likely to fall short as compared to judicial scrutiny. Notably, as a practical matter, leading Illinois counsel advises me that it is typically only heteronormative, domestic families who choose to use the administrative process, and that international intended parents and non-heteronormative families choose to seek a declaratory process so that they can obtain an order and not just a birth certificate (unfortunately, many international jurisdictions are not as friendly to same-sex parentage or parentage through surrogacy as are Illinois and Ontario). With a traditional surrogacy, Illinois offers no administrative process so as to protect the integrity of the process and the security of the family for the reasons I have mentioned above, and permits it only for gestational surrogacy where fraud is less likely and other professionals may be relied upon to be accountable. In my opinion, it is especially concerning and misguided that Ontario intends to allow parentage through traditional surrogacy without any court oversight, and threatens the entire legitimacy and security of parentage in this province.
Ontario needs to concern itself with protecting the integrity of the surrogacy process and parentage. Ontario needs to ensure that a person has not been coerced into giving up her child, and that the child is one who was conceived to be parented by the intended parents and not the surrogate. Undoubtedly, Ontario has the best of intentions, but unfortunately I believe this lack of oversight will eventually prove to have unintended and unwanted consequences and undermine a process that helps countless parents and that currently has growing moral legitimacy that could evaporate if under-regulated.
4. The All Families are Equal Act Discriminates Against Children Born Through Surrogacy by Failing to Protect their Privacy in the Same Manner as Ontario Protects the Privacy of Adoptees
The Act provides that s. 70 of the Children’s Law Reform Act (the “CLRA”) will apply to declarations for parentage and non-parentage. Section 70 of the CLRA requires the court to consider whether an order should be made limiting access to the court file and/or prohibiting the release of identifying information about the parties to the court proceeding or any individuals mentioned in the court documents. That the Act incorporates s. 70 of the CLRA is a positive step; however, it falls short of what is required by failing to direct the court to seal applications of parentage and non-parentage with respect to parentage through surrogacy as Ontario does with respect to adoptees. Section 70 simply requires the court to consider whether it is appropriate to restrict access to the court file and prevent the release of identifying information. It is discretionary; by failing to direct that the record be sealed, it does not ensure that the privacy of the children and the families involved in these proceedings will be protected.
In Ontario, there are already strong statements of law from court establishing that there is no public interest in parentage applications. Most recently, in addressing an amendment to a Practice Direction requiring that notice be given to the media in any case where a party requests that public access to a court proceeding be restricted unless otherwise ordered by the court, Madam Justice Kiteley of the Superior Court of Justice noted that legislation requires that information be kept confidential after an adoption order is made and that children subject to protection proceedings have the benefit of a statutory ban on publication. Kiteley J. opined that although children who are the subject of parentage applications have no such protection, there is no justification for the differential treatment. In light of Madame Chiappetta’s consent order in the Grand Charter challenge, this differential treatment is discriminatory.
This, together with the real possibility of harm to children (and their families) who are the subject of parentage applications and the lack of any legitimate public interest in the private information contained in the documents provided by the parties involved in parentage applications is sufficient to warrant a legislated guarantee of privacy for the subject individuals, equivalent to that of adoptees. The All Families Are Equal Act should therefore go further than incorporating s. 70 of the CLRA by requiring that all court files related to parentage applications be sealed and anonymized without the need for the parties to convince the court that such an order is appropriate.
5. The All Families are Equal Act Permits Sperm Donation Through Sex Which May Result in Unintended Consequences for Surrogacy in Ontario.
Almost as an aside, it is worth bringing to the public’s attention that the All Families are Equal Act permits sperm donation through sex where there is a pre-conception written agreement making the donor not a parent. This is an extremely marked departure from any provincial law in any jurisdiction in Canada, or most (if not all!) progressive jurisdictions internationally.
I won’t go into the reasons why this ought to be concerning as a policy or what this could mean for single women, as I will leave this to the traditional family law lawyers to comment on (or for another blog post!). Instead I will focus on my area of expertise, which is fertility law. First, though, I think it is important to mention that we ought to consider how significant is the need or ill to be rectified by changing our law in this way. Considering the Act would already recognize a sperm donor through an at-home insemination not to be a parent (as it should), I fail to see why this seismic change to our law is necessary when there are so many people who stand to be harmed by the blurring of the line that child conceived through sex = parent. Obviously, permitting sperm donation through sex adds further uncertainty to the question of whether a person is a donor or a father. Will men force women to sign such a document? What happens if at some point in a relationship the sperm donor agreement was in place, but now a sexual relationship has developed outside of the donation? Clearly this will lead to less secure family building and will be ripe for litigation.
For the purposes of this article, though, more on point and more interesting, is what this law could potentially mean for the future of traditional surrogacy: if, further to the Grand consent order of Madame Justice Chiappetta, parentage law in Ontario cannot discriminate on the basis of sex, gender or manner of conception, how can Ontario have a law which permits a man to be a sperm donor through sex, but not permit a woman to be a traditional surrogate through sex? This aspect of the All Families are Equal Act looks ripe for a Charter challenge to me, and I cannot see the legal basis to permit a man to be a donor and not a parent through sex and not a woman. Is this a road Ontario wants to travel? And if successful, is it possible for a man to contract out of being a parent through sex, and a woman to contract out of being a parent through sex, too, leaving no legal parent to a conceived child? Food for thought and worth considering – fodder for a future blog article.