On September 29, 2016 the Ontario government introduced a new Bill that would fundamentally change the legal landscape with respect to who is a parent. Bill 28, the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, would, among other things, impact people starting families through sperm and egg donation, as well as surrogacy.
The Bill must go through several stages before it becomes law and could be amended along the way.
While the Bill would result in many positive changes, now is the time to focus on its flaws because this is the window during which improvements can be made.
A critical issue is that the Bill states that:
A surrogacy agreement is unenforceable in law, but may be used as evidence of,
(a) an intended parent’s intention to be a parent of a child contemplated by the agreement; and
(b) a surrogate’s intention to not be a parent of a child contemplated by the agreement.
While this seems reasonable, it fails to recognize that surrogacy agreements are about so much more than parentage and ought to be enforceable in law. There is a lot of information in a standard surrogacy contract that has nothing to do with who is a parent, but benefits all the parties in other ways and helps ensure they are on the same page. For example:
What should happen if the child appears to have a serious genetic condition? Should the surrogate terminate the pregnancy? Would she be willing to? Is that what the intended parents would want?What kinds of expenses will the intended parents reimburse the surrogate for? If she is on doctor-ordered bed rest will the intended parents contribute to her lost income?What should happen if the surrogate becomes brain dead during the pregnancy? Should the surrogate be kept on life support until the child can be delivered?What do the parties want to happen if the first embryo transfer fails? Do they plan to try again?Who will be in the room during the delivery of the child? Is the surrogate comfortable with the intended parents being present?If the intended parents died or separated during the pregnancy, who should the surrogate give the child to after the birth?
Intended parents and surrogates take great risks when entering a surrogacy relationship and place enormous amounts of trust in each other that they will uphold their end of the bargain. The law would better serve all parties if they knew the agreement, or at least the parts that would not violate public policy, would be upheld in court.
In some respects the Bill actually contradicts itself because while it proposes that surrogacy agreements not be enforceable in law, it also makes surrogacy agreements a condition of registering births in a new and faster way (in contrast to the current approach that first requires going to court).
This Bill would be improved if the section quoted above were simply amended as follows:
A surrogacy agreement is unenforceable in law, but may be used as evidence of,
(a) an intended parent’s intention to be a parent of a child contemplated by the agreement; and
(b) a surrogate’s intention to not be a parent of a child contemplated by the agreement.
Stay tuned for more blogs as the Bill makes its way through the legislative process.
Photo credit: Marcelo Cantarela via Foter.com / CC BY
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