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Ontario’s New Surrogacy And Sperm Donation Law Is Both Awesome And Terrible

By: Above The Law, Ellen Trachman

As regular readers of this column know, almost every developed country in the world is struggling with how to legally address continually advancing technology that has turned traditional notions of parenthood on their head. Thanks to egg, sperm, and embryo donation, genetic links are no longer dispositive when it comes to defining who a child’s parents are legally. Moreover, the longstanding presumption that a woman giving birth to a child is the child’s legal mother is practically arcane at this point in the context of assisted reproductive technology or “ART” law.

Canada’s Province of Ontario is the latest governmental entity to pass revised assisted reproductive technology-related parentage laws. On November 29, 2016, the Ontario Parliament passed an act amending a number of parentage-related laws, creating new legal presumptions around surrogacy and gamete donation. While the Parliament deserves some credit for taking on this massive and controversial topic, the resulting law is a mixed bag. Sara Cohen, a Toronto-based ART attorney, summarized the situation: “Overall this is very welcome legislation. Parents and families in Ontario suffered from outdated heteronormative legal constructs with respect to the family, and the All Families are Equal Act goes a long way in addressing these issues. However, the legislation is disappointing with respect to surrogacy in that it makes gestational surrogacy in particular more legally treacherous than it was in the province.”

Supporting Same-Sex Parents. One element to be applauded of the new legislation is its goal of eliminating discrimination against same-sex couples by specifically allowing a gender-neutral framework of parenthood and permitting a child to have multiple fathers or multiple mothers.

Four-Parent Families. A second element is likely to be more controversial. While a child having more than two parents has already been permitted in Ontario by court order, the new law specifies that a child can have up to four parents (now no court order required). In some non-traditional families—like where two separate same-sex couples raise children together—Ontario’s new law brings legal recognition and security to the reality of their parenting situation. And I suppose every child wants more birthday presents (four parents means four times the financial resources, right?). But naturally, the new law will create some sticky situations upon divorce, or if the family structure otherwise falls apart. In those cases, legal decision-making for the child—as well as custody and visitation—could become pretty messy with four parents involved.

Turkey Baster Approved. Last week, we talked about the dangers of sperm donation via “turkey-baster” methods. Many U.S. statutes require that a licensed physician be involved in an insemination for a donor to avoid being deemed a legal parent of the child. But the Ontario law declares open season on turkey-baster inseminations (pun intended). Ontario will allow donors to be deemed as mere donors, and not legal parents, even without a legal agreement in place. Not only does this encourage sperm donation via turkey-baster, but the law also goes further by permitting sperm donation via the super old-fashioned way, i.e., sexual intercourse, where there is a pre-sex agreement in place. Clearly, Canada’s fertility doctors are less influential in legislation than their U.S. counterparts.

Surrogacy Disaster. Legally recognizing parenting situations that are already happening anyway will be seen as a major step forward by many in the ART community. Additionally, for those interested in breaking down traditional heteronormative stereotypes about the family, Ontario’s legislation certainly goes in that direction. Setting aside these issues, however, the surrogacy piece of the legislation a major step backward.

Prior to the passing of this act, Ontario courts had enforced most gestational surrogacy arrangements on the issue of parentage. Now, however, legal recognition will not occur until at least seven days after the birth of the child. Instead, a surrogate and intended parents may only reach an initial agreement about the terms of their relationship, but the legislation specifically states that a surrogacy agreement is unenforceable. Of course, this arrangement actually leaves open every intended parent’s nightmare: a surrogate being able to change her mind after the birth and keep the child. Similarly, the reverse is possible as well. Intended parents in a surrogacy arrangement can change their mind and walk away—perhaps if a baby is born with special needs, or if multiples are born that the intended parents don’t want—potentially leaving the surrogate stuck with parental rights to a child she is not related to, and never intended to parent.

I am all for reasonable legislation, but the surrogacy section of Ontario’s new law proves that sometimes no legislation is the preferred option.