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Assisted reproduction, particularly as it relates to LGBTQ families, is an area where the law has lagged considerably behind technological and social advancements. Ontario has fallen behind many other provinces in legal reform to address these inequalities and legislative gaps.
For example, currently in Ontario when a lesbian couple conceives a child through a known sperm donor, the non-birth mother must adopt the child after birth in order to be recognized as a legal parent. By contrast, straight couples who conceive through a known sperm donor do not have to go through the adoption process.
In the fall of 2015, Toronto MPP Cheri DiNovo introduced Bill 137, also known as “Cy and Ruby’s Act”. The bill aims to bring about some much needed reform for LGBTQ families and families who conceive through alternative reproductive technologies. One of the ways it seeks to address inequalities is by removing gendered language from legislation, including the Children’s Law Reform Act and Vital Statistics Act. For instance, the bill would amend birth registration documents to remove the terms “mother” and “father” and replace them with the gender-neutral term “parent.”
This seemingly small change could have a huge impact on families, like the family of Cy and Ruby, and their parents Kirsti and Jennifer. Kirsti’s wife, Jennifer, was in labour when doctors warned Kirsti that due to complications there was a chance her wife could die. Kirsti held her newborn baby as the doctors worked frantically to save her wife’s life. If this moment wasn’t stressful enough, Kirsti also realized that she was not the legal parent to her own child. If her wife died that day, Kirsti might not have been able to leave the hospital with her baby. Thankfully, her wife was okay and they eventually did leave the hospital with their newborn daughter as a family.
Now, imagine going through an ordeal like that, and then still having to hire a lawyer, wade through red tape, and go to court in order to be recognized as your child’s legal parent? As Kingston MPP Sophie Kiwala so aptly put it,
“why does a spouse who has conceived, planned for the child and rejoiced at his or her have to go through a legal process to obtain their equal parental rights? In fact, if you just think about it, same-sex parents have a lot more planning to do than heterosexual parents.”
The bill has overwhelming support from MPPs of all political parties, as well as family, reproductive and human rights lawyers. Some lawyers have expressed concern that the bill may fall short on its efforts to address surrogacy agreements. For instance, several reproductive law experts have pointed out that the bill fails to distinguish between gestational surrogacy (when the surrogate is not biologically related to the child) and traditional surrogacy (when the surrogate herself provides the eggs).
The bill also refers to a standard form that would be provided in the Act’s regulations, which could be used instead of a surrogacy agreement. While standard forms can be helpful in making legal processes more accessible, surrogacy agreements are complicated and often dependent on the individual situation. It is also unclear whether a standard form surrogacy agreement like this could be used to demonstrate the surrogate’s intention if she had not first obtained independent legal advice.
Hopefully some of these kinks will be worked out now that the bill passed its second reading on December 10, 2015 and was referred to the Standing Committee for review. We will be tracking its progress, so stay tuned!