Measuring parentage policy in the Canadian provinces: a comparative framework.
Snow, Dave
The standard Canadian narrative for assisted reproductive
technologies (ARTs) is that they are largely unregulated by provincial
governments, even after the Supreme Court of Canada ruled in 2010 that
much of the policy field was provincial jurisdiction (see Baylis and
Downie 2013; Guichon, Mitchell, and Doig 2013). The exception, however,
has been parentage policy. Whether created by legislation or judicial
decisions, most provinces have laws for parentage, both with respect to
children born through surrogacy and assisted conception. While these
policies have been receiving some attention from legal scholars (Kelly
2009; Busby and Vun 2010; Nelson 2013b), they have been largely ignored
by the comparative and Canadian public policy and public administration
literature on ARTs. This paper seeks to fill this gap and to use the
Canadian case to begin a comparative project to measure parentage policy
variation.
What follows begins by offering a definition of parentage policy
and sets out a framework by which to measure parentage policy. In
keeping with the comparative public policy literature on ARTs (Bleiklie,
Goggin, and Rothmayr 2004; Engeli, Green-Pedersen and Larsen 2012), this
paper relies on a metric of "permissiveness" based on fewer
legal barriers for intended parents. After a description of parentage
policy in each Canadian province, I analyze their policies using the
framework. My findings suggest that provincial parentage policy change
has increasingly moved in a permissive direction, particularly in the
last decade. Moreover, this has often occurred because of litigation: in
several provinces, individual judicial decisions have effectively set
the rules for parentage in the absence of government policy; in others,
they created the impetus for legislative reform.
While the patchwork of Canadian laws has frustrated commentators in
favour of reform, the myriad ways in which provinces have addressed
parentage can actually capture the nuances and complexities inherent in
parentage policy, providing conceptual clarity for comparative scholars.
This paper suggests that future studies of parentage policy, in Canada
and comparatively, should do three things: adopt a universal definition
of and framework for measuring parentage policy; examine the role of
multiple policy implementers in achieving policy change, including
courts and the bureaucracy, but also legal and medical organizations;
and pay close attention to how the timing of legal change influences
policy learning and policy transfer for parentage, especially in
federations.
Parentage policy in theory: a framework
Because of long-standing common law rules based on a
heteronormative family framework, in most jurisdictions the traditional
legal assumption has been that a child's legal parents are the
woman giving birth and (if applicable) her husband or male partner
(Busby 2013: 289; Nelson 2013b: 335). The advent of ARTs and growing
social acceptance of LGBTQ families mean this assumption is no longer
always valid. It is in this context that governments have created
parentage policy, which can be defined as the rules concerning the
procedures and eligibility requirements used to determine legal
parenthood for children born through assisted conception or surrogacy.
The purpose of parentage policy is to avoid formal adoption and
accelerate the process for transferring or adding legal parents to a
child's birth certificate. It can occur through various mechanisms,
such as statutory recognition or (more commonly) after-the-fact orders
made by a court or government agency (known as "parental
orders" or "parentage orders"). However, its defining
characteristic--what parentage policy is fundamentally designed to
do--is to increase the range of possible parental arrangements to keep
up with the reality of ARTs and new family structures.
The easiest way to measure a jurisdiction's parentage policy
is where it fits along a spectrum from permissive to restrictive. This
characterization is not new to ARTs; indeed, it has been used in the
major comparative public policy volumes on ARTs to measure variation
among jurisdictions (see Bleiklie, Goggin, and Rothmayr 2004; Engeli,
Green-Pedersen and Thorup Larsen 2012). While these works unfortunately
excluded parentage policy from the discussion, the spectrum nevertheless
provides a useful analytical tool to measure policy variation for
parentage. Moreover, the permissive-restrictive scale avoids the
normative trappings of terms such as conservative/liberal,
traditional/non-traditional, and natural/unnatural often used in ethical
and comparative accounts of ARTs. My concern here is not to assess the
normative implications of parentage policies, but rather, create a
framework for measuring and comparing jurisdictions to enable scholars,
public administrators, and policymakers to better understand the factors
explaining the variation. As defined here, parentage policy becomes more
permissive if there are fewer legal barriers for intended parents.
Table 1 sets out a framework that identifies ten possible ways
jurisdictions can reduce barriers for legal parents. The parental status
of the woman giving birth is normally assumed, even if she is not
genetically related to the child. As such, parentage policy is typically
implicated in two instances: assisted conception and surrogacy. In the
context of assisted conception, the woman giving birth intends to add
other parents to the child's birth certificate (as opposed to
surrogacy, when the woman giving birth intends to transfer
responsibility to other parents). The first two rows of Table 1 concern
assisted conception. If the woman giving birth intends to raise a child
conceived via assisted conception alone, the issue of parentage addition
obviously does not arise. Nor does it arise if the woman giving birth
intends to raise the child with her male partner, who is traditionally
deemed the child's other parent through law. There are only two
instances in which the parentage policy becomes relevant in the case of
assisted conception: if the woman giving birth intends to parent her
child with a single female partner (Row 1), or with two or more other
parents (Row 2).
Unlike assisted conception, surrogacy occurs when the woman giving
birth, at least at the time of conception, does not intend to parent the
child. With surrogacy, parentage is transferred from the surrogate to
the intended parent(s). Typically, this involves a written pre-birth
agreement--a surrogacy arrangement--which states that the intended
parent(s) will raise the child. To recognize the legal validity of such
agreements, jurisdictions can take five courses of action in order to
increase parentage permissiveness in the context of surrogacy
arrangements. In Table 1, Rows 3-7 concern the eligible types of parents
to whom parentage can be transferred: a heterosexual couple (Row 3); a
lesbian couple (Row 4); a gay male couple (Row 5); a single female
parent (Row 6); and a single male parent (Row 7). When a law permits
parentage transfer in general and does not expressly exclude any of
these parental arrangements, I assume they are all permitted.
The final three rows in Table 1 concern three additional
permissiveness possibilities. The first of these concerns genetic
relatedness. Many jurisdictions--such as Alberta and Nova
Scotia--stipulate that parentage
transfer can only occur following a surrogacy arrangement if at least
one parent shares a genetic relation to the child. Because the genetic
relation requirement is an additional burden for intended parents,
jurisdictions are more permissive if this requirement is absent (Row 8).
Jurisdictions can also deem surrogacy arrangements legally enforceable,
making it easier for intended parents to achieve parentage if a
surrogate changes her mind after signing the arrangement. In such
instances, the surrogate would be given no authority to decide to keep
the child. As Snyder and Byrn note, with such a pre-birth
"contract," the intended parents "are determined to be
the legal parents of the child before the child's birth, thereby
giving them immediate and sole access to and control over the child and
its postnatal care and medical treatment when it is born" (2005:
634). Although legal enforceability of surrogacy arrangements is
uncommon--no Canadian province provides for this possibility--it does
exist in certain jurisdictions, such as in Ukraine and in the American
states of Florida and Nevada (Busby 2013: 293; Nelson 2013a: 250).
Because jurisdictions that do permit legal enforceability often
distinguish between traditional surrogacy (where the surrogate is
genetically related to the child) and gestational surrogacy (when she is
not), Rows 9 and 10 reflect the two types of surrogacy that involve
parental transfer. In each case, the existence of enforceable surrogacy
arrangements would render a jurisdiction more permissive, insofar as
enforceability creates fewer legal barriers for intended parents.
Although legal enforceability does not currently exist in any Canadian
province, these rows remain in the table for the purposes of comparative
measurement.
Collectively, the ten categories in Table 1 provide an analytical
framework by which to measure parentage permissiveness across
jurisdictions. The more categories that apply to a jurisdiction, the
more permissive its parentage policy. Permissiveness is described in
ordinal rather than interval terms: each category is treated as
quantitatively equal, with a higher number of categories reflecting
higher permissiveness. The framework is not all-encompassing. Other
requirements--such as age, residency, criminal background checks, and
counselling--do exist for parentage in certain jurisdictions (see
Millbank 2011: 179-183), and others could be introduced. For clarity and
simplicity, however, the framework is limited to the most common
requirements: the type of intended parents, their genetic relation to
the child, and the enforceability of surrogacy contracts.
Parentage policy in the Canadian provinces
Because provinces have constitutional jurisdiction over the
regulation of contracts, adoption, birth registration, and
custody/access excluding situations involving divorce, parentage
primarily falls under provincial jurisdiction in Canada. While the
federal government could take a leadership role to drive uniformity, (1)
it has been largely absent from the field, with the exception of
policies for issuing passports to children born to a surrogate outside
of Canada for Canadian intended parents (Citizenship and Immigration
Canada 2014). Given the federal government's tendency to exclude
consideration of issues affecting the LGBTQ community in areas of
provincial jurisdiction (Mule and Smith 2014), this absence is not
surprising. The net effect is that parentage policy in Canada is far
from uniform. As Nelson notes, "[e]ven among the provinces that
have taken steps to address this issue in legislation, there is no
consistency as to where the rules are found, their precise content or
how they might be interpreted" (2013b: 338). Using the framework
above, this section outlines the approach of each province, which will
provide a basis for comparison. We begin with provinces whose rules are
clearest (Quebec, Alberta, and British Columbia), then move to provinces
with less clear policy (Newfoundland and Labrador, Nova Scotia,
Manitoba, and Prince Edward Island), and conclude with provinces whose
parentage policy is, in whole or in part, governed by decisions
resulting from litigation (Ontario, Saskatchewan, and New Brunswick).
Parentage in Quebec
Quebec was the first jurisdiction in Canada to introduce permissive
rules for parentage in the case of assisted conception. In 2002, Quebec
extended the presumption of paternity to a spouse of either sex (married
or civil union), thereby recognizing that a child can have two female
parents (Nelson 201b3: 339). Because this is a presumption of paternity,
it is a pre-birth parentage addition. Quebec's legislation also
stipulates that merely contributing genetic material (sperm or eggs) for
a "third-party parental project" does not create any parental
obligation, and it does not permit more than two parents. This
"filiation" system revolves around the concept of a
"parental project," which begins at the moment intended
parents decide to have a child using third-party reproductive material.
Effectively, the system confers the same presumptions, rights, and
obligations on parents of children conceived through assisted conception
as those conceived through coital reproduction (Civil Code of Quebec.,
LRQ, c. C-1991, arts. 538-42). When passed in 2002, it made Quebec a
"pioneer in Canada" for legislating permissive rules for
parentage (L'Esperance 2013: 36).
Article 541 of Quebec's Civil Code makes surrogacy
arrangements null and void. The surrogate retains legal custody over the
child, and parentage cannot be transferred to intended parents
regardless of genetic relation (Civil Code of Quebec., LRQ, c. C-1991).
There are reported instances of intended parents getting around this
surrogacy law and achieving parentage when the man is genetically
related to the child (L'Esperance 2013: 36), (2) and the government
recently created a committee to examine recognizing surrogacy
arrangements (Canadian Press 2015). In the absence of legal reform,
however, Quebec's surrogacy ban means that the province--a decade
ago considered a "pioneer" for parentage--is a restrictive
province overall, with legal rules in place only for parentage in the
context of assisted conception.
Parentage in Alberta
In 2005, two lesbian co-mothers successfully challenged
Alberta's Family Law Act, which limited the default parentage
presumption in the case of assisted conception to the "male
partner" of the woman giving birth. In Fraess v. Alberta (Minister
of Justice and Attorney General), [2005] A.B.Q.B. 889, Justice Clarke of
the Alberta Court of Queen's Bench found the legislation violated
Section 15 (equality rights) of the Canadian Charter of Rights and
Freedoms and that is could not be saved as a "reasonable
limit" under section 1. He read in changes to make the legislation
gender neutral, permitting the presumption of lesbian parentage. Alberta
subsequently overhauled its legislation to make it consistent with this
ruling.
Alberta's parentage legislation is, along with British
Columbia's, the most comprehensive in Canada (although it relies on
court orders more than British Columbia). With respect to assisted
conception, Alberta presumes that the parents are the woman giving birth
and the male who provided sperm or an embryo, provided it was for his
own reproductive use (not a donor). This prevents third-party donors
from having parental obligations. When the woman giving birth has a
female partner, they are both presumed to be parents of the child
provided her partner was in a "conjugal relationship of
interdependence of some permanence with the woman giving birth at the
time of the child's conception" and consented to assisted
conception; in such instances, no application for parentage addition
needs to be made (Family Law Act, S.A. 2003, ch. F-4.5, s. 8[1][3][i]).
This is the remedy sought by the parents in Fraess. Finally,
Alberta's legislation prohibits courts from transferring or adding
parentage if the child would have more than two parents.
With respect to surrogacy, Alberta's legislation presumes that
the legal parents are the woman giving birth (the surrogate) and the
child's genetic father--not the surrogate's partner. The
Family Law Act then permits transfer of parentage, whereby the
genetically-related intended father's partner can be declared the
parent of the child and the surrogate be declared not to be the
child's parent. This is also possible if a female intended parent
can prove that the eggs of an embryo used in surrogacy came her from own
genetic material. If the court is satisfied that the child is
genetically related to one of the intended parents and the surrogate
consents post-birth, it will grant the application that the intended
parent(s) are the child's parents (Nelson 2013: 339-340). Because
the surrogate agrees to relinquish her parental rights, this means that
in five of the six possible eligible intended parent surrogacy
scenarios, parentage transfer can occur. However, genetic relation
matters: if a child is born to a surrogate and neither of the intended
parents are genetically related to that child, the surrogate and her
partner (if the partner consented) are the child's legal parents.
Although the legislation states that once an application is granted
the intended parents will be deemed legal parents "at and from the
time of the birth of the child," the requirement that the surrogate
must consent means all parentage transfers occur post-birth. Surrogacy
arrangements are valid but not enforceable in Alberta; if the surrogate
does not consent to the parentage order and decides to keep the child,
then she is listed as the sole parent. Pre-birth consent in the form of
a surrogacy agreement cannot be used as post-birth consent for the
surrogate, although it can be used as consent for the non-genetic parent
(Busby and Vun 2010: 30; Nelson 2013: 340).
Parentage in British Columbia
British Columbia is the most recent province to pass parentage
legislation. In 2011, it amended its Family Law Act to include
provisions for surrogacy and assisted conception (which fully came into
force in March 2013). For assisted conception, the woman giving birth
and her consenting partner are parents provided they are in a
"marriage-like relationship," regardless of whether they have
a genetic relation to the child (Family Law Act, S.B.C, ch. 25, s.
27[3]). The legislation also contains a provision saying that a donor is
not a parent merely by donating genetic material.
For surrogacy, the intended parent(s)--regardless of sex or genetic
relation--are deemed parents if there is a written agreement that the
surrogate does not wish to parent the child, that she intends to
surrender the child, and that the intended parents wish to parent the
child. The surrogate must also consent post-birth. Unlike Quebec and
Alberta, British Columbia does not declare surrogacy arrangements
invalid; while a pre-conception surrogacy arrangement alone cannot
satisfy the requirements for parentage transfer, it can be used as
"evidence of the parties' intentions with respect to the
child's parentage if a dispute arises after the child's
birth" (Family Law Act, S.B.C, ch. 25, ss. 29[7][b], 34-35). Thus,
the legislation acknowledges the possibility that a dispute can arise
and that judicial discretion will play a significant role. Although
British Columbia permits immediate post-birth parental registration
without the need to go to court, the fact that the surrogate must
continue to consent means parentage transfer is not treated as a
pre-birth contract. This significantly diminished reliance on courts
marks a difference from Alberta (and indeed all other provinces),
insofar as parentage is typically established administratively rather
than judicially.
The Family Law Act expressly also permits courts to declare three
parents in two situations: when the woman giving birth and two intended
parents have an agreement to raise the child together, or when a donor,
the woman giving birth, and her partner have an agreement to raise the
child together (ss. 27, 29[2]). Although Section 30 of the legislation
does use the word "donor," as long as all three parties agree
to the order, there is no requirement for DNA testing; hence, no genetic
relation is required. In February 2014, the first such three-parent case
was reported after a lesbian couple and a known sperm donor were all
named on a child's birth certificate (Subdhan 2014).
Although the Family Law Act was designed to lessen the need for
time-consuming judicial proceedings, the judiciary has had a
considerable influence on the development of parentage policy in British
Columbia. In Rypkema v. H.M.T.Q. et al, [2003] B.C.S.C. 1784, Justice
Gray of the Supreme Court of British Columbia granted the intended
parents--both genetically related to the child born through an unpaid
surrogacy arrangement--legal parentage over a child born to a surrogate
(who consented throughout the process). Subsequently, in B.A.N. v. J.H.,
[2008] BCSC 808, 294 DLR (4th) 564, Justice Metzger of the same court
granted parentage to intended parents. In this case, the child was
genetically related to the intended father, but not the intended
mother--the embryo was created by fertilizing a known donor's egg
with the intended father's sperm. According to the intended
parents' affidavit, British Columbia's Vital Statistics Agency
had set out rules for registering a birth following a surrogacy
arrangement, which involved getting a post-birth court declaration.
Thus, in the five-year interim between Rypkema and B.A.N.--what Karen
Busby (2013: 296) calls the "Rypkema regime"--without any
legislative initiative, the bureaucracy had drafted internal policy to
be consistent with the Rypkema judgment. British Columbia's 2011
amendments to the Family Law Act have effectively superseded these
common law cases, but those amendments, like Alberta's, came in no
small part because of litigation.
The permissive factors with respect to parentage in the context of
surrogacy and assisted conception--in addition to no requirement for
genetic relation and the possibility of more than two parents--means
British Columbia has the most permissive legislation in Canada (see
Table 2).
Parentage in Newfoundland and Labrador
Newfoundland and Labrador's legislation permits parentage
orders for surrogacy and assisted conception. According to the Vital
Statistics Act, in the case of "artificial insemination"
(which one can assume covers other forms of assisted conception), the
partner of the woman giving birth will be deemed the "father or
other parent" provided there is written consent of both parents
(Vital Statistics Act., Ch. V, 6.01). When a child is born through a
surrogacy arrangement, the registrar general will register the
child's "intended parents" provided a court issues a
parentage order under the Children's Law Act (or an adoption order
under the Adoption Act). The language is gender-neutral, and although
the law uses the plural "intended parents," there is nothing
in the either the Children's Law Act or the Vital Statistics Act
that suggests there must be two intended parents. However, the exclusion
of any mention of more than two parents means courts are not given
authority to issue declarations of parentage for more than two parents.
Parentage orders can be sought before the parents are born and, as Busby
and Vun (2010: 30) note, "the consent of the surrogate mother is
not expressly required." Finally, the legislation does not require
a genetic relation in the case of surrogacy.
Parentage in Nova Scotia
In 2007, Nova Scotia created the Birth Registration Regulations
pursuant to its Vital Statistics Act. These Regulations concern both
assisted conception and surrogacy. For assisted conception, if the woman
giving birth is married, her spouse is the child's other parent; if
she is unmarried but has a partner who wishes to be the parent, her
partner must file a statutory declaration with the birth registrar
acknowledging that he/she wishes to parent the child with the woman
giving birth. The Regulations permit this form of parentage addition
either before or after the birth. Like Newfoundland and Labrador, Nova
Scotia's legislation does not include a provision to allow more
than two parents.
With respect to surrogacy, the Regulations enable a court to make a
declaration of parentage registering the intended parents and removing
the surrogate as long as the agreement was made pre-conception, was
initiated by the intended parents, and one of the parents has a genetic
link to the child. Section 5(2)(c) states that a condition for parentage
transfer is that "the woman who is to carry and give birth to the
child does not intend to be the child's parent" (Birth
Registration Regulations. O.I.C. 2007-498, N.S. Reg. 390/2007). This
suggests if the surrogate decides she does want to raise the child, the
transfer will not go through, and the surrogate (and her partner, if
any) will remain legal parent(s) of the child. Thus, surrogacy
arrangements are not enforceable post-birth.
Parentage in Manitoba
Manitoba's parentage legislation does not currently contain
surrogacy provisions. However, s. 3(6) of the Vital Statistics Act
states that when a child is born as a result of "artificial
insemination" (which, like Newfoundland and Labrador, likely
applies to other forms of assisted conception), the birth registration
will list the woman giving birth and her spouse (defined as
"cohabiting with her in a conjugal relationship of some
permanence") as the "father or other parent," thus
permitting two female parents (Vital Statistics Act, Ch. V, C.C.S.M. c.
V60). There is currently no provision for more than two parents although
Manitoba's proposed Family Law Reform Act would change this.
In Manitoba, litigation to change surrogacy procedures was
unsuccessful. In J. C. v. The Queen (Dept, of Vital Statistics), [2000]
2000 M.B.Q.B. 173, the Court of Queen's Bench rejected an
application that would have compelled hospital staff to recognize the
intended parents as the child's legal parents following a surrogacy
birth. Even though the surrogate and her husband supported the
application, Justice Keyser held that the legislature had deliberately
excluded pre-birth declaratory orders for maternity from the Manitoba
Family Maintenance Act. The judge did, however, indicate that a
declaration of parentage with respect to the genetic mother could be
made after the birth was registered, although he did not make that
declaration, as the case facts preceded birth of the child.
Manitoba looks set for considerable policy change. In June 2015,
the government introduced Bill 33, the Family Law Reform Act (FLRA). The
legislation seeks to overhaul Manitoba's parentage policy and bring
it more into line with regimes in Alberta and British Columbia. In
addition to changing the wording from "artificial
insemination" in the Vital Statistics Act to "assisted
reproduction" in the FLRA, the legislation confirms that a donor is
not a parent simply by virtue of donating reproductive material. It lays
out a procedure whereby a court order for parentage transfer must be
made in the case of surrogacy, provided there is a pre-birth surrogacy
agreement, the surrogate consents post-birth, and one or both of the
intended parents "provided reproductive material or the embryo used
in the assisted reproduction" (Manitoba 2015, s. 16(2)). Like
Alberta, a genetic relation will be required in order for parentage
transfer to occur. The FLRA also contains a provision that will permit a
child to have three parents if born through assisted reproduction but,
like surrogacy, a genetic relation will also be required. Notably, while
the legislation states that a court "must" grant the parentage
order if it is satisfied certain conditions are met in the case of
surrogacy, in the case of three parents the court "may" grant
the order--providing judges with greater discretion in the latter
situation (Manitoba 2015, ss. 16-19). At the time of writing, the
legislation has not yet made it to second reading in the legislature.
Parentage in Prince Edward Island
In Prince Edward Island, the Child Status Act contains provisions
for assisted conception but not surrogacy. The law stipulates that when
a child is conceived via assisted conception, the partner of the woman
giving birth is the other legal parent. It also states that the woman
giving birth will be the mother of the child regardless of whether she
is the genetic mother, thus effectively precluding surrogacy
arrangements (Child Status Act, Ch. C-6.). No known legal challenges
have occurred to change Prince Edward Island's parentage policy.
Parentage in Ontario
With respect to assisted conception, Ontario's Vital
Statistics Act does recognize that the woman giving birth and an
"other parent" can be presumed to be parents by default in
scenarios involving assisted conception. As in Alberta, this change
occurred in response to a Charter challenge to the legislation, in
Rutherford v. Ontario (Deputy Registrar General), [2006] 81 O.R. (3d)
81.
However, Ontario law does not include any specific provisions for
surrogacy. Surrogacy nevertheless can and does occur in Ontario. As
L'Esperance (2013: 36) notes, there is a complicated process by
which intended parent(s) can be listed on the child's birth
certificate: they must seal a Statement of Live Birth with their names
on it, delay the child's birth registration, conduct genetic tests
to prove they are genetically related to the child, and hope a Family
Court will review the file and make a declaration of parentage. Although
such an arrangement would be quicker than formal adoption, it is not
recognized in legislation and relies in large part on the discretion of
the court. Ontario does not have a clear legal procedure in place to
ensure parentage in the context of surrogacy arrangement--certainly not
to the extent of several provinces listed above. While the complicated
legal process described by L'Esperance (2013) could be initiated, I
do not include Ontario as having permissive policy with respect to
parentage transfer after surrogacy in Table 2, as these rules are not
instantiated in legislation.
However, Ontario proves that, because of common law decisions, a
legislative vacuum does not necessarily mean a legal vacuum. The Ontario
Superior Court of Justice case M.D. et al. v. L. L. et ah, [2008] 90
O.R. (3d) 127, involved a situation in which two heterosexual intended
parents used their own genetic material and entered into a surrogacy
arrangement with a surrogate and her husband. The surrogate's name
had to be placed on the birth certificate, and all four parties sought a
declaration that the intended parents were the only parents of the
child. Justice Nelson ruled that there was a "gap" in the
Vital Statistics Act "that does not operate in the child's
best interests, insofar as the inferential definition of
'mother' impedes the court's jurisdiction to declare a
person not to be the mother of a child" (para. 61). Interestingly,
Justice Nelson did not mandate genetic testing, even though both
intended parents claimed a biological connection to the child (para.
46). While this case did not amend the Vital Statistics Act, it
nevertheless should act as a precedent for future cases. However, unlike
legislation, it is unclear whether the case will apply in other
parentage arrangements, such as one where there is only one intended
parent, two male or female intended parents, or no genetic relation
between the intended parent(s) and the child.
One other case in Ontario has likely set a precedent: A.A. v. B.B.,
[2007] O.N.C.A. 2. In this case, a lesbian couple (A.A. and C.C.) used
their male friend B.B's sperm to impregnate C.C. Subsequently, the
couple raised the child recognizing that B.B. would play a smaller
parental role. However, under Ontario law, the woman giving birth and
the genetic father were the child's legal parents (the child was
born before the 2009 amendments to the Vital Statistics Act). When the
child was two, A.A. applied for a declaration that she was the
child's parent in addition to B.B. and C.C. On appeal, Justice
Rosenberg also held that there was a gap in Children's Law Reform
Act (CLRA), and added A.A. as the child's third parent. He noted
that "[a]dvances in our appreciation of the value of other types of
relationships and in the science of reproductive technology" meant
A.A. and C.C. ought to be considered "as much the child's
parents as adopting parents or 'natural' parents" (para.
35). Interestingly, Justice Rosenberg rejected the argument that the
legislative gap was deliberate, holding that the exclusion of
non-traditional parental projects was "a product of the social
conditions and medical knowledge at the time" (para. 38). He thus
granted that a child can have three parents, making Ontario (at the
time) the first jurisdiction to allow this. However, as Fiona Kelly
notes, it is not clear whether this applies "beyond the individual
facts of the case"; as with M.D., the legislation was not amended
after the decision (Kelly 2009:193).
What is most striking about Ontario's parentage policy is that
its permissive features all stem from judicial decisions. Rutherford
enabled lesbian mothers to be presumed as "other parents" and
eventually persuaded the government to amend its legislation; M.D.
granted parentage to intended parents genetically related to a child
born through surrogacy; and A.A. allowed a child born through assisted
conception to have three parents. Whether the latter two cases will
result in legislative change, or the extent to which they will act as
precedents, is unclear.
Parentage in Saskatchewan
Saskatchewan amended its Vital Statistics Act in 2009 to include
the term "other parent" as someone "cohabiting with the
mother or father of the child in a spousal relationship at the time of
the child's birth and who intends to participate as a parent in the
upbringing of the child" (Vital Statistics Act, S.S., ch. V-7.21,
s. 2[1]). This allows the female partner of the woman giving birth to be
a legal pre-birth parent for assisted conception. However, Saskatchewan
legislation does not recognize parentage with respect to surrogacy, and
there is no provision for more than two parents.
Litigation has affected parentage policy for surrogacy. In W.J.Q.M.
v. A.M.A., [2011] S.K.Q.B. 317, two gay males who had engaged in a
third-party surrogacy arrangement sought a declaration to remove the
name of the woman giving birth from the child's birth registration
and have their names included. The child was conceived using donor sperm
from one of the males and an anonymous egg donor. The surrogate did not
dispute the order. There were no prior precedents in Saskatchewan but,
drawing from other provincial cases in Canada, Justice Ryan-Froslie was
satisfied that the surrogate was not the child's "biological
mother" based on the Children's Law Act, and that
"neither the applicants nor [the surrogate] ever intended that
[she] would assume any parental rights or obligations" (para. 25).
She granted a declaration that the two males were the legal parents, and
the surrogate was not.
Because the case involved statutory interpretation, it will likely
serve as a precedent. However, the important role played by the
surrogate's non-genetic relation to the child suggests that this
might not apply in cases of traditional surrogacy; following the case,
the men's lawyer claimed "[t]here would have been a greater
risk for us" had the surrogate been genetically related to the
child (Brean 2011). As with litigation in Ontario, the extent to which
the case would apply in other scenarios is unclear.
Parentage in New Brunswick
There is no legislation regarding surrogacy or assisted conception
in New Brunswick. Neither the Vital Statistics Act nor the Family
Services Act provide for parentage transfer in either procedure.
Instead, movement in parentage policy has occurred because of case law.
The first relevant case was a Labour and Employment Board decision
regarding assisted conception: A.A. v. New Brunswick, [2004] HR-004-03.
In this case, a woman had a child after artificial insemination from an
anonymous sperm donor, but the Department of Health and Wellness would
not register her female partner as the second parent. The Board found
the couple had faced discrimination against according to section 5(1) of
the New Brunswick's Human Rights Act and awarded damages.
In the 2010 case J.A.W. v. J.E.W., [2010] N.B.Q.B 414, the Court of
Queen's Bench allowed a parentage order in the case of surrogacy,
where a female had carried a child to term for her sister and
sister's husband. The judge noted that the child was genetically
related to both of his intended parents, claiming "the Legislature
intended to vest [the court with] jurisdiction so as to allow for
declarations of parentage based on biology" (para. 18). It is
unclear whether the same judge would have permitted a parentage order to
other (non-heterosexual) intended parents, or to those without a genetic
connection to the child. New Brunswick has not amended its legislation
to reflect either decision.
Discussion
Using the framework, we can compare provincial regimes and derive
several conclusions. First, Table 2 demonstrates that most provinces do
have some sort of legislation in place regarding parentage. New
Brunswick remains the only province without any legislation for assisted
conception or surrogacy. Moreover, legislation in certain
provinces--particularly in Alberta, Quebec, British Columbia, and soon
Manitoba (3)--provides clarity for surrogates and intended parents.
Legal clarity does not always mean permissiveness, however:
Quebec's legal clarity restricts parentage transfer by declaring
surrogacy arrangements null and void. This provincial policymaking
confirms Mule and Smith's suggestion that LGBTQ needs are currently
better (if not fully) represented at the meso level in Canada (2014:
251).
Second, courts have played a prominent role in shaping parentage
policy. In Alberta, British Columbia, and Ontario (in part), challenges
to parentage provisions provided the impetus for legislative reform. In
Saskatchewan, New Brunswick, and Ontario (again in part), they serve as
the status quo in the absence of subsequent legislative reform.
Moreover, litigation strategies have typically nudged policy towards
permissiveness, particularly in the absence of legislation. Table 3
demonstrates that in the three provinces for which litigation acts as
the policy status quo, the result has been more permissive policy. Such
litigation, of course, did not arise in a vacuum. In Canada, there has
been a large-scale social and political change concerning the
normalization of LGBTQ relationships and non-traditional families over
the last two decades, often driven by successfully organized interest
groups looking to achieve policy change through the courts (Rayside
2008, ch. 6; Smith 2005; Snow 2014). In this vein, judicial change of
parentage policy has been on a smaller scale than, for example, the
late-1990s and early-2000s push to recognize same-sex marriage as a
Charter right. Yet the general trend of courtroom success with respect
to parentage policy is consistent with the comparative (and Canadian)
evidence on judicial policymaking, which suggests courts will promote
legal change by "asserting individual rights and liberties against
traditional social values" in "moral" conflicts
(Tatalovich and Daynes 2005: xxvii).
Third, and relatedly, parentage policy change in the last decade
has reflected a movement away from restrictive policy, regardless of
which policy implementer has made those changes. In some provinces this
was secured through legislative action, in others a well-timed judicial
decision, and in some provinces both. Slowly but surely the general
trend among the provinces has been towards greater policy
permissiveness, and the most recent provinces to change their policy
(Alberta and British Columbia) have done so through comprehensive
legislation. Quebec's recent committee to examine surrogacy and
Manitoba's bill to create the Family Law Reform Act are a
continuation of this trend.
Fourth, Table 4 shows that parentage policy in Canada is a
patchwork, with provinces "scoring" anywhere between one to
eight on a ten-point permissiveness scale. There is considerable
variation between provinces with respect to the legal status of children
born through ARTs, and there have been limited intergovernmental
attempts to harmonize policy. Just about every imaginable parentage
arrangement is covered by one province or another, particularly when
taking into account the sex, genetic relation, and number of eligible
intended parents. As with other fields that touch on health policy
(Fierlbeck 2010:17), there has been a general lack of federal
leadership.
Conclusion
That this is the first study to aggregate and measure parentage
policy in Canada speaks to how much it has been ignored in the public
policy and public administration literature. It provides a basis for
undertaking more research on ARTs generally and parentage specifically.
I conclude by outlining three directions for comparative research.
First, the framework developed here provides a useful tool to
measure parentage policy in jurisdictions beyond Canada. By
distinguishing between assisted conception and surrogacy, focusing on
eligibility requirements, identifying rules for genetic relationships,
and measuring surrogacy contract enforceability, the framework here
offers a simple ten-point measure for parentage policy variation.
Second, this study has shown that national and subnational
governments, courts, the bureaucracy, and perhaps even legal and medical
organizations have the capability to affect parentage policy. Those
effects can be hidden, however, if one focuses solely on national
governments, as many studies of ART policy have done. Despite calls to
examine different policymakers (Varone, Rothmayr and Montpetit 2007: 6),
ART policy scholars have not yet done so in any systematic way. Canada
in particular shows that taking both subnational governments and the
judiciary seriously can produce a richer understanding of how policy
outputs are produced. Moreover, policy innovation can also come from the
bureaucracy, such as British Columbia's short-lived "Rypkema
regime" and reported workarounds to restrictive parentage policy in
Ontario and Quebec (Busby 2013: 296; L'Esperance 2013: 36). This
suggests future studies should qualitatively examine the mechanisms by
which the bureaucracy and legal professionals can achieve policy change
in the absence of legislation and judicial decisions, in Canada and
elsewhere.
Finally, as a developing field of public policy, parentage is
fertile ground for studying policy learning and policy transfer among
subnational governments. While these concepts have been increasingly
used to describe interactions between states (Dolowitz and Marsh 2000;
Legrand 2012), there has been insufficient study of how subnational
governments have engaged in horizontal policy learning and transfer, in
Canada or elsewhere. Canadian provinces are no strangers to learning
from each other with respect to health care, as shown by the effects of
Saskatchewan's pioneering adoption of government-funded medical and
hospital insurance from the 1940s to the 1960s (Tuohy 2009, 492; see
also Jordan 2008: 178-181; Maioni 2012: 167). Certainly the above
provides some evidence for the same phenomenon for parentage, given
similar language and provisions in Alberta's 2009 Family Law Act,
British Columbia's 2011 Family Law Act, and Manitoba's
proposed Family Law Reform Act. While provincial litigation appears
largely idiosyncratic, legislative overhauls, even when in response to
litigation, suggest policy learning has occurred as of late. As these
legal regimes come into full swing, it will be interesting to note
whether other provinces opt to make similar policy change to achieve
legal clarity. The specific timing of legislative change should also be
explored, as Quebec's 2002 "filiation" regime, then a
substantial innovation, does not seem to have spread to other provinces
in spite of its availability as a transferrable policy. Comparative
analysis of multiple federations can provide a fruitful endeavor for
contributing to this existing literature on federalism and policy
learning/transfer.
The significance of this research project goes beyond comparative
measurement and description, necessary as these may be. Parentage policy
deserves exploration precisely because of its growing importance in a
world where more and more people are turning to ARTs to build families.
The laws in place--whether by legislation or judicial decisions--can
inhibit or promote the creation of new families. They can provide legal
certainty for parents, create security for surrogates, and prevent legal
disputes. Understanding how this policy field develops, and the factors
behind policy change, will continue to have both theoretical and
practical relevance.
Notes
(1) The Uniform Law Conference of Canada (ULCC), an organization
made up of delegates from the federal, provincial, and territorial
governments, was part of a joint working group that reviewed provincial,
territorial, and federal legislation pertaining to parentage with the
goal of creating a template for a Uniform Child Status Act. The draft
legislation was prepared for consideration in 2010. The working
group's principles and approach were approved by the federal
Minister and Deputy Minister responsible for justice, and
representatives from the (now defunct) federal agency Assisted Human
Reproduction Canada were consulted. The federal government has not moved
to introduce this template as an actual bill, but Alberta's and
British Columbia's legislation (and Manitoba's proposed Family
Law Reform Act) largely reflects the Uniform Child Status Act.
(2) It has been reported, for example, that in the case of a single
intended father, the surrogate simply has to write down the name of the
genetic father on the birth certificate and relinquish her rights to
parenthood. More complicated processes have occurred for heterosexual
and gay male couples (L'Esperance 2013: 36), but these are neither
instantiated in legislation nor common law, which explicitly reject
parentage transfer in the context of surrogacy.
(3) As Manitoba's proposed Bill 33 (the Family Law Reform Act)
is still at first reading stage, numbers in Tables 2-4 predate the
passage of legislation. Updated numbers reflecting the Bill occur at the
bottom of each table.
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Killam Trusts at the University of Calgary and at Dalhousie University.
Table 1. Ten Measures of Parentage Permissiveness
1 Assisted Conception: Female Partner
2 Assisted Conception: More Than Two Parents
3 Surrogacy: Heterosexual Parents
4 Surrogacy: Two Female Parents
5 Surrogacy: Two Male Parents
6 Surrogacy: Single Female Parent
7 Surrogacy: Single Male Parent
8 Surrogacy: No Genetic Relation Requirement
9 Gestational Surrogacy as Contract
10 Traditional Surrogacy as Contract
Table 2. Parentage Policy in Canada (Legislation Only)
BC AB SK MB ON
Assisted Conception: x x x x x
Female Partner
Assisted Conception: More x **
Than Two Parents
Surrogacy: Heterosexual Parents x x **
Surrogacy: Two Female Parents x x **
Surrogacy: Two Male Parents x x **
Surrogacy: Single Female Parent x x **
Surrogacy: Single Male Parent x x **
Surrogacy: No Genetic x
Relation Requirement
Gestational Surrogacy as Contract
Traditional Surrogacy as Contract
PERMISSIVENESS TOTAL 8 6 1 1 ** 1
QC NB NS PE NL
Assisted Conception: x x x x
Female Partner
Assisted Conception: More
Than Two Parents
Surrogacy: Heterosexual Parents x x
Surrogacy: Two Female Parents x x
Surrogacy: Two Male Parents x x
Surrogacy: Single Female Parent x x
Surrogacy: Single Male Parent x x
Surrogacy: No Genetic x
Relation Requirement
Gestational Surrogacy as Contract
Traditional Surrogacy as Contract
PERMISSIVENESS TOTAL 1 0 6 1 7
** Total precedes potential enactment of Family Law Reform Act. If
legislation passes, Manitoba's total will be 7. Asterisks is used
here to show where Manitoba would stand if Act comes into force.
Table 3. Parentage Policy in Canada (Legislation and Judicial
Decisions)
BC AB SK MB ON
Assisted Conception: x x x x x
Female Partner
Assisted Conception: More x (b) x (a)
Than Two Parents
Surrogacy: Heterosexual Parents x x (b) x (a)
Surrogacy: Two Female Parents x x (b)
Surrogacy: Two Male Parents x x x (a) (b)
Surrogacy: Single Female Parent x x (b)
Surrogacy: Single Male Parent x x (b)
Surrogacy: No Genetic x
Relation Requirement
Gestational Surrogacy as Contract
Traditional Surrogacy as Contract
PERMISSIVENESS TOTAL 8 6 2 1 (b) 3
QC NB NS PE NL
Assisted Conception: x x (a) x x x
Female Partner
Assisted Conception: More
Than Two Parents
Surrogacy: Heterosexual Parents x (a) x x
Surrogacy: Two Female Parents x x
Surrogacy: Two Male Parents x x
Surrogacy: Single Female Parent x x
Surrogacy: Single Male Parent x x
Surrogacy: No Genetic x
Relation Requirement
Gestational Surrogacy as Contract
Traditional Surrogacy as Contract
PERMISSIVENESS TOTAL 1 2 6 1 7
(a) Due to judicial decisions rather than legislation.
(b) Total precedes potential enactment of Family Law Reform Act.
If legislation passes, Manitoba's total will be 7. b is used here
to show where Manitoba would stand if the Act comes into force.
Table 4. Parentage Policy Permissiveness in Canada
Restrictive - Permissive
1 2 3 6 7 8
MB (b) SK (a) (1) ON (a) (1) AB NL BC
QC NB (a) (0) NS
PE
(a) In part because of judicial decisions
(legislative total in parentheses).
(b) If Manitoba's Family Law Reform Act comes
into force, Manitoba would move from 1 to 7.
