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Who’s your daddy? Proposed Changes to Ontario Laws Regarding Parentage

The Ontario government has recently been reviewing proposed changes to the Children’s Law Reform Act, Vital Statistics Act, Succession Law Reform Act and 37 other Ontario Acts. The proposed legislation, entitled “Bill 28, All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016” was introduced to address inequality and legal uncertainty with respect to legal treatment of children conceived using assisted reproductive technology.

Currently, parents who conceive children using reproductive technology, or a surrogate to carry the child, may encounter legal obstacles when the child is not biologically related to one of the intended parents. Where a child is born with the assistance of a sperm donor, egg donor or embryo donor, the non-biologically related parent may need to obtain a declaration of parentage, in order to be recognized as the legal parent of the child. The same may be true where a child is carried by a surrogate. The rights and obligations of both biologically-related and non-biologically related “parents” have been uncertain for a number of years, and there has been little Ontario jurisprudence to clarify the situation.

If passed, the proposed legislation would recognize, without need of a court order, the following:

  1. That the legal parents of a child conceived through assisted reproduction, are the birth parent and the birth parent’s partner, if any, at the time of the child’s conception.
  2. That the legal parents of a child born through surrogacy are the intended parents, subject to the existence of a pre-conception parentage agreement and other preconditions[1].
  3. That up to four people could be legal parents of a child parents, subject to the existence of a pre-conception parentage agreement[2].
  4. That a deceased person can be the parent of a child conceived after said individual’s death, subject to certain requirements[3].

The legislation has passed the second reading and has been referred to the Standing Committee on Social Policy. The Standing Committee held meetings on October 17th and 18th to allow interested parties to provide oral submissions.[4] The deadline for written submissions was October 18th. Following the public hearings, the Committee is meeting on October 24th and 25th to review the proposed legislation on a clause by clause basis.

[1] The other preconditions are that the surrogate obtain independent legal advice before entering into the agreement and that the surrogate’s confirms her consent to give up the baby, within 7 days following the birth. As well, the agreement must be in writing.

[2] The agreement must be in writing and the birth parent must be one of the four parties.

[3] The reproductive material of the deceased person had to be intended to be used for reproductive purposes, the deceased person provided consent to the use of the reproductive material after said donor’s death, by a specified person, and the deceased person gave written consent to be the parent of a child conceived after said donor’s death, which consent had not been withdrawn.

[4] Hansard transcripts can be found at: www.ontla.on.ca

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