Cy and Ruby’s Act: One step forward for LGBTQ equality, one step back for surrogacy

In cases where a lesbian couple uses a known sperm donor, the non-birth mother must adopt the child after the birth… even if the child is genetically related to her. By contrast, a straight couple who uses a known sperm donor does not have to go through an adoption (or similar alternative legal process).

Cy and Ruby’s Act was introduced into the Ontario government in November 2015 for the purpose of achieving greater equality for same-sex couples. If the bill becomes a law, women would not have to adopt their own children simply because they are married to another woman.

Cy and Ruby’s Act also proposes to amend the Vital Statistics Act to use more gender-neutral language.

There is also a part that clarifies a sperm or egg donor is not, simply by virtue of providing sperm or egg, a parent. This is a positive step toward continuing the trend of recognizing parents based on intention, and not genetic material – which is essential for people who need an egg, sperm, or embryo donation to build their families.

There is, however, one part of the Act that is very alarming – and that will hopefully change before the bill becomes law. The Act refers to a standard form which could be used instead of a surrogacy agreement. While lawyers use precedents to draft all kinds of legal documents, it is to be efficient and avoid reinventing the wheel. The actual skill of a lawyer comes into play when modifying precedents to the clients’ individual circumstances and providing customized legal advice. In most legal situations (such as buying a business, suing someone, or filing for a patent) a person would never insert his or her name on a precedent and view the document as complete. Surrogacy is no different. Surrogacy agreements are typically 20+ pages and customized for every client. In fact, people who use a different surrogate for their second child are often surprised to learn that they need a brand new contract despite having been through the process once before. And that is because surrogates are all different and each relationship is unique. Will she consent to termination? How many cycles will she go through? How will she be reimbursed? Will she pump breast milk for the parents? Where will she deliver? Should a tragic situation occur and she is on life support, would she want to be kept alive until the baby could be delivered? Without legal advice, will all parties truly understand what risks and obligations they are taking on? Likely not. Entering into a surrogacy relationship is very serious, and the consequences of a failed relationship can be devastating. A prescribed form sends the wrong message and will deprive parties of receiving very important advice that is necessary to make an informed decision about whether to proceed.

Cy and Ruby’s Act will create real change in Ontario. But hopefully the path to equality will not be accompanied by introducing fundamental flaws to surrogacy procedures in Ontario.

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