Current Uniform Acts

Assisted Human Reproduction Working Group Report 2009

VI. Summary of Draft Uniform Act

[91]    The existing Uniform Child Status Act was approved by the Uniform Law Conference of Canada in 1992.  Upon review it was found to require grammatical changes, updating in terms of new AHR procedures and to deal with developing family contexts. As a result, it is recommended that the existing Act be repealed and replaced with a new uniform Act that will:

  • i.   contain new definitions, such as “assisted conception”, and “birth mother”;
  • ii.  retain existing provision on void and voidable marriage;
  • iii. describe what the status of parent under this legislation applies to;
  • iv.  limit the implications of the Act to be prospective;
  • v.   provide rules of parentage to:

- cover the birth mother and presumed father where no assisted conception, or

- cover the birth mother and partner where assisted conception used or person declared a parent,

- allow for additional parents to be declared if assisted conception involved,

-  state that adoption changes parentage according to the law of the jurisdiction,

- allow that declaratory orders can change parentage in cases of surrogacy,

-  describe that kindred relationships are to be determined according to relationships described above, and

- state that no distinction shall be made between the status of a child born inside marriage and a child born outside marriage (the existing uniform Act does not deal with bullets 2, 3 and 5);

vi.    continue the presumptions of genetic father if no assisted conception, but state these presumptions do not apply in cases of assisted conception (dealt with in section 9 of the existing uniform Act);

vii.  set out the presumptions in cases of assisted conception to cover the situations of a partner married to or cohabiting with the birth mother at time of child’s conception or birth and a person who consented to be a parent (presumed consent through cohabitation is implied; however, this presumption does not apply in cases of surrogacy when the birth mother relinquishes her rights);
  • viii. allow declarations to be made on application to court or on the court’s own motion to find that a person is or is not a parent of a child -no application is allowed after an adoption has occurred;
  • ix. provide that a person is not a parent merely by the donation of sperm or ova, but this does not apply to a person who provides genetic material for the person’s own use;
  • x. deal with surrogacy firstly by stating that surrogacy agreements are not enforceable and then stating how parentage can be determined in surrogacy situations by the surrogate mother relinquishing parent status to intended parents (it will provide a specified time limit after the birth for this application for declaratory order to be completed and at least one of the intended parents must be genetically related to the child, and the child is deemed upon declaratory order of the court to be the child of the intended parents);
  • xi.  deal with situations where the surrogate mother wants tocontinue to be a legal parentwith the intended parents (application being made within a specified time frame after the birth);
  • xii. allow for a declaration of an additional parent in situations involving a donor, birth mother and partner requiring consent prior to conception by all parties, recognition of a genetic link with an intended parent and the consent of that donor to be a parent (requiring all parties to obtain legal advice before entering into the agreement and the application to be made within a specified time frame after the birth);
  • xiii. allow the court to make a declaration as to parentage if the above criteria have been followed and unless it is contrary to public interest;
  • xiv. deal with blood and DNA tests to establish paternity, inference from refusal, etc; and
  • xv.  deal with new evidence and the effects of a new order.

Appendix A:  Review of Case Law

Presumption of Parentage:

(P.) v. L. (S.), 2005 SKQB 502, 273 Sask. R. 127, 262 D.L.R. (4th) 157 (Sask. QB) – the presumption in Section 45 of the Children’s Law Act with contained presumption of paternity based on cohabitation with mother at time of birth was rebuttable and merely evidentiary in nature, and thus conferred no parental rights – so Charter application that presumption be extended to woman cohabiting with the mother at time of child’s birth is not a Charter remedy as court cannot affect fundamentals of biology that underlay presumptions purely in the interests of equal treatment before the law.

Declaration or Finding of Parentage:

Fraess v. Alberta, 2005 ABQB 889, 278 D.L.R. (4th) 187, 23 R.F.L. (6th) 101 (Alta. Q.B.) – extension of automatic parental status to same-sex spouses in some circumstances.

Gill v. British Columbia (Ministry of Health), 2001 CarswellBC 3164, [2001] B.C.H.R.T. No. 34 – lesbian couple – registration as parents in Vital Statistics – denial was discrimination based on sexual orientation and family status and against the children on the same grounds by denying them the right to have both their parents named on the birth registration.

Rutherford v. Ontario (Deputy Registrar General) (2006), 270 D.L.R. (4th) 90, 81 O.R. (3rd) 81, 30 R.F.L. (6th) 25 (Ont. S.C.J.) – several lesbian couples with children conceived through anonymous donor insemination – were refused registration on Vital Statistics as birth mother’s partner – judge ruled that the birth registration provisions of The Vital Statistics Act were invalid because they discriminated against the co-parents on the basis of sex, contrary the Charter.

(A.) v. B. (B.) (2007), 278 D.L.R. (4th) 519, 83 O. R. (3d) 561, 35 R.F.L. (6th) 1 (Ont. C.A.); leave to appeal to SCC refused 2007 SCC40, [2007] 3 S.C.R. 124, Ontario Court of appeal – based on parens patriae, the court found that based on the best interests of the child the court could recognize three parents.  The SCC denied leave and characterized the decision of the Ontario Court of Appeal as based solely on the parens patraie jurisdiction of the courts. [Lebel, J.]

(K.G.) v. P. (C.A.), [2004] O.J. No. 3508 [QL], 2004 CarswellOnt 8819 (Ont. S.C.J.) – an order was brought by the genetic father of a child born by in vitro fertilization pursuant to a surrogacy agreement whereby the birth mother and her husband agreed that they would not be recognized as the parents of the child.  The genetic father was seeking to be named the sole parent of the child.  The birth mother is not genetically related to the child (anonymous donor egg was used) and agreed not to be named as the mother of the child.  The court rules that the genetic father should be registered as the sole parent.

Ontario Birth Registration No. 88-05-045846, Re, [1990] O.J. No. 608 [QL], 1990 CarswellOnt 3834 (Ont. P.C.)– Parties initially entered into an arrangement where by a child would be born to a birth mother by way of artificial insemination using the sperm of the husband of her mother (i.e. the birth mother’s stepfather).  All parties further agreed that they would consent to an adoption order declaring the mother and stepfather of the birth mother as the legal parents of the child entitled to custody of the child.  After the birth, the birth mother’s mother and stepfather sought an order for adoption, but the birth mother opposed it and refused to acknowledge the stepfather as the father of the child for birth registration purposes.  The court rules that the adoption application should be granted, as the circumstances indicated it would be in the best interests of the child.

Zegota v. Zegota-Rzegocinski (1995), 10 R.F.L. (4th) 384, [1995] O.J. No. 204 [QL], 1995 CarswellOnt 75 (Ont. G.D.) – child conceived through AHR (donor sperm) with consent of both parties.  Divorce granted before child born.  There was an order that the birth registration be amended to show the ex-husband as the father of the child and the child’s name changed to add the father’s surname.  Former wife wanted ex-husband removed from birth registration.  Court decided in favour of ex-husband, who was granted generous access to child and unrestricted access to educational and medical records.

R. (J.) v. H. (L.), [2002] O.J. No. 3998 [QL], 2002 CarswellOnt 3445 (Ont. S.C.J.) – parties entered into a surrogacy arrangement resulting in the birth of twins.  DNA evidence confirmed that JR and JK were the genetic mother and father of the twins.  After the children were born, the birth mother, LH, and her husband, GH, consented to an application for a declaration of the court that JR and JK were the parents of the twins.  The court granted the application.

Three way agreements break down:  C. (M.A.) v. K. (M.), 2009 ONCJ 18 (Ont. C.J.) – the three parents had an agreement to co-parent and adoption and planned a three parent family as allowed in A. (A.) v. B. (B.) (noted above) and planned to seek a three way adoption.  The relationship had broken down with natural father and women restricted access and wanted to have only lesbian couple adoption and dispense with father’s consent.  Court did not allow this and said the following about child’s best interests at paragraphs 36 and 37:

…This court sees all kinds of family structures and, absent specific statutory provisions otherwise, the nuclear family of two parents and a child enjoys no special preference when the court is assessing the best interests of a child.  Indeed, a child can have more, or less, than two parents for the purposes of family law….

Second, it is well-established in law that, where a child’s best interest are concerned, the issue for the court is not what kind of family the parents wants, but what is best for the child.…

(M.) v. L. (L.) (2008), 90 O.R. (3rd) 127, 52 R.F.L. (6th) 122 (Ont. S.C.J.) – the applicants MD and JD entered in gestational carriage agreement with family friends LL and IL as MD was unable to have children.  The applicants wanted to be registered as parents and sought a court declaration of parentage.  The applicants were declared parents as parentage was not required to be defined based on genetics only as The Children’s Law Reform Act did not define parentage solely on basis of biology.  The court made no finding on the validity of the gestational carriage agreement.  A previous case had also allowed such a declaration based on consent, R. (J.) v. H. (L.) (noted above), and declared that a child had more than one mother.  O’Driscoll v. McLeod (1986), 10 B.C.L.R. (2d) 108 (B.C.S.C.), said court had jurisdiction to make binding declarations of paternity.  Here again, the surrogate mother consented. 

C. (J.) v. Manitoba, 2000 MBQB 173, 151 Man. R. (2nd) 268, 12 R.F.L. (5th) 274 (Man. Q.B.) – genetic parents sought a declaration compelling hospital staff attending at the birth to complete documentation showing that applicants to be natural and legal parents of children delivered by the surrogate mother.   Based on legislation Vital Statistics Act found “mother” was contemplated to be the person who gives birth and held that legislature had made it explicitly clear that a declaration of paternity or non-paternity was available prior to the child’s birth.  Decided similar order could not be made on maternity and court refused to make the order.

In C. (M.A.) v. K. (M.) (noted above), the Ontario Court of Justice at paragraph 45 states that: “I begin by stating the well-established principle that, in custody and access cases, a court is not bound by the provisions of domestic contracts.”  Ligate v. Richardson (1997), 34 OR (3d) 423, at paragraph 59, Moldaver J.A. quoted from Woodhouse v. Woodhouse (1996), 29 OR (3d) 417 (Ont. C.A.), the well established principle that:  “Separation agreements are not binding on the court because it is the interests of the children rather than those of the parents which are at issue.  Willick v. Willick, [1994] 3 S.C.R. 670 (S.C.C.); Droit de la famille – 1150, [1993] 4 S.C.R. 141 (S.C.C.).”  He also states:  “…the terms of the agreement are to be considered as a factor, along with all of the other facts and circumstances, old as well as new, in the determination of the child’s best interests.”

Parental Responsibility:

Child support ordered against a surrogate mother by Australian court – January 25, 2009 article. 

Rose v. Secretary of State for Health and Human Fertilization and Embryology Authority [2002] EWHC 1593 (Admin), [2002] 2 Fam Law Rep. 962  (H.C.J. – Q.B. Div.) – an English case in which a woman born as a result of sperm donation sued for the release of information about her genetic father.  See article by Hilary Young, “In Search of Identity, Reconciling the Interests of Gamete Donors and Their Offspring in the Disclosure of Identifying Information About the Donor” (Paper presented to International Conference on New Reproductive and Genetic Technologies, Nanaimo, B.C., May 26, 2007).

Next Annual Meeting

2018 Conference (Centennial)

Delta Hotel

Québec City, QC

August 12 - 16, 2018