Current Uniform Acts

Assisted Human Reproduction Working Group Report 2009

B. Increasing Legal Uncertainty and Challenges:

[14]    Advances in AHR have made determining the legal parent-child relationship more complicated in certain cases.  The existing legislation is inadequate, as the concepts do not take into account AHR techniques and this leads to challenges in the courts with judges making decisions in a policy vacuum.[13] If this situation is not remedied, there is great potential for the law to develop in an inconsistent ad hoc way.  From the child’s perspective, inconsistency in child status rights may arguably be inherently unconstitutional, since birth registration is a foundation document from which citizenship and the right to participate in society flows.  As well, the differential treatment of families presents inequity for non-traditional family forms.

[15]    Changes to the law in this area would respond to the realities of AHR by clarifying the parent/child relationship in such cases. These changes will need to address any remaining fundamental unfairness that exists for same-sex couples and their children, be sensitive to gender equality issues and will need to recognize children born in different family structures.  For example, although in Canada same-sex relationships are legally recognized, same-sex couples may still experience different treatment in terms of the registration of their children’s births.  While differences in treatment often reflect the historical purposes of the birth registration process, accommodation is needed to recognize equivalent parental and child rights in these situations.

[16]    Because parentage laws and birth registration are the societal markers of legal parentage, same-sex couples have commenced numerous court challenges to ensure their inclusion in this fundamental element of family formation.  Many Canadian jurisdictions have experienced Charter challenges to these two legislative frameworks, and these challenges will continue if legislatures are slow to respond.

[17]    Opposite-sex couples who use AHR have not encountered the same difficulties in registering their children’s births.  However, they face the same legal uncertainty as same-sex couples do in establishing parentage where the child is conceived using donated third party genetic material.

[18]    There has been increasing demand for recognition of parental status in recording of birth registry.  Birth registration is the process through which all births that occur in a province or territory get documented.  It serves two equally important purposes:  provides information for health surveillance (mother and child data) and establishes a source of information used to issue proof of the legal status of an individual – name, age, citizenship and legal parentage.  Vital Statistics registries have faced human rights and Charter challenges concerning who is entitled to be registered as a parent where AHR is used.  Some of the issues raised impact on parentage and others on the registry process or information needs. 

[19]    As this paper deals only with parentage, the issues relating to the type of registration records to be kept by Vital Statistics will not be dealt with.  Further work may be required on the Uniform Vital Statistics Act to define how to adequately record information related to situations involving AHR for health surveillance reasons and to adequately address the information needs or expectations of donors, recipients or children born through AHR.

Next Annual Meeting

2018 Conference (Centennial)

Delta Hotel

Québec City, QC

August 12 - 16, 2018