“Not the Momma!” – A Comment on Reproductive Rights for Gestational Carriers

There are issues in family law that seem to be popping up more and more frequently. As family law practitioners, it is important for us to stay on top of new trends and developments in our field.

Reproductive rights is one such area of emerging law.  The frequency of surrogate or gestational parents and technologies such as in vitro fertilization is becoming commonplace in today’s society. As such, it is inevitable that our Courts must now pronounce judgments on issues in this area. Although the case law is scant at present, family law lawyers see more and more clients who are looking to set up agreements, or resolve disputes, regarding the definition of parentage, the number of parents a child can have at law, rights of gestational carriers, and so on.

This article focuses on a case in Saskatchewan from a few years ago, WJQM v AMA, 2011 SKQB 317, where two parties agreed with a gestational carrier of their biological materials (sperm and egg) that the carrier would not be listed as the mother on the statement of live birth. Contrary to their intentions, however, the carrier was listed as the mother.  The stage was set for the Court to weed through case law and legislative hurdles to resolve the issue of who is, and how to appropriately define, the mother.

First, the Court looked to the Vital Statistics Act, 2009, and noted the legislation will list the mother as “the woman from whom a child is delivered”. The Act also contains a presumption that the names of the mother and father as recorded on the registration of live birth are presumed to be the parents of the child – but this presumption is rebuttable if the Court finds that the “parentage” of the child on the registration of live birth is incorrect. Typically this rebuttable presumption as to the parentage of the child is argued by would-be fathers, but in our case it would apply to mothers.

The Court then had to decide what was meant by “parentage” – could it be that the parentage of a child is really defined by who actually gives birth to the child?

The number one legal dictionary, known as Black’s Law Dictionary, was used to help sort this out. Black’s says that “parentage” is defined as “kindred in the direct descending line”. With this definition in mind, the Court determined that Black’s definition must require that a biological connection exists in order to establish parentage.

The Court then looked at another Saskatchewan statute, The Children’s Law Act, 1997, and noted that s. 40 of that Act identifies that a “kindred relationship” is required for persons to be the natural parent of his or her child. The Court then again determined that a kindred relationship requires a biological connection in order to be a natural parent under that Act. Finally the Court looked to the definition  of ”mother” within The Children’s Law Act, 1997, and, after considering matters of statutory interpretation, also found that a “mother”, pursuant to that Act, requires a biological connection.

So, we seem to have a contradiction. The Vital Statistics Act, 2009, only requires that a person give birth, with no requirement for biological connections, whereas The Children’s Law Act, 1997 requires a biological connection for a person to be a “mother”. What did the Court do?

The Court stated that it could use The Children’s Law Act definition of “mother” in conjunction with the Court’s own jurisdiction to make Orders it chooses under The Queen’s Bench Act, 2008, to declare that a mother for the purposes of the statement of live birth, must be the biological mother. This Order would then necessarily require the statement of live birth to be amended to reflect that Order.

But … the Court then turned its attention towards whether it should make such an Order.

Lacking relevant decisions from Saskatchewan, the Court looked at three cases, one from Manitoba and two from Ontario, to come up with its determination.

The Manitoba case found that such an Order as sought in our case could not be made prior to the child’s birth, but could be made after the birth. The first Ontario case noted the issue present in our case could have “been a problem” if the gestational carrier had wanted to remain on the statement of live birth; however, in our situation, all parties agreed to removing the gestational carrier’s name. The second Ontario decision made a point that it is acceptable and appropriate in some cases for a Court to state that a person is not the mother of a child, rather than, or in conjunction with, stating affirmatively that another person is the mother of a child. This precludes the scenario where more than one person can be defined as the mother of a child (for the purposes at issue in this case).

If you’re still with me, you can see how the Court had to weave its way through extra-provincial case law, potentially conflicting statute and inherent jurisdiction in order to ultimately find the biological mother who provided the egg was able to replace the woman who gave birth to the child on the statement of live birth.

Although confusing, this decision does a good job of highlighting a few key principals:

1) We see how few cases there currently are in Saskatchewan on this issue.  All of the cases referred to by the Judge were out of province decisions;

2) The decision shows how the legislation, in this case the Vital Statistics Act, 2009, may not be totally up to speed with newer developments in the reproductive realm. Our case, thankfully, also shows how other legislation, in this case The Children’s Law Act, 1997, in conjunction with the inherent jurisdiction afforded to judges under The Queen’s Bench Act, 1998, can remedy deficiencies in situations where the bold type definitions contained within other legislation may be one or two steps behind the times; and

3) The decision highlights the importance of entering an agreement that specifies who, the gestational carrier or the biological parent, will be considered the “parent”. Importantly, the Court noted that previous agreements are important between all parties with respect to who will be named as the mother of the child. Take note that such agreements, in writing and drafted carefully, will be central to any dispute in situations where perhaps the surrogate or gestational carrier decides they are not so willing not relinquish their status as “mother” after the baby is born.

Having and caring for a child is perhaps the greatest life choice and responsibility any person will ever have. For such an important decision, it is imperative that everyone understands and agrees to their roles and responsibilities vis a vis the new baby. If you are looking at parentage issues, gestational carriers, surrogacy or really any matter regarding reproductive rights, feel free to give us a call to discuss.  Our Family Law Group can help.