As a Manitoba couple whose twins were carried by a surrogate mother has discovered, the legal status of parentage matters.
Legal parents make decisions respecting their child's upbringing free from intervention by others unless the standard of care they provide falls to precariously low levels or conflicts arise between parents.
The absence of parentage may affect a parent or a child's legal rights related to citizenship, dependent child sponsorship, residency, access to travel documents, naming, custody and access, medical decision-making capacity, eligibility for inheritance, parental leave and EI benefits.
So who has parentage of a child born of a surrogacy arrangement? The woman who gives birth to a child and her husband, if she has one, are always presumed to be the legal parents of that child. Intended parents become the child's parent in most provinces by a court order after the child's birth. Some provinces have passed specific laws to clarify the process but others, including Manitoba, have left it up to judges to figure out what to do in the absence of legislation.
Courts require evidence of the surrogate mother's post-birth consent, and the process provides a forum to air disputes should they arise.
While it is illegal to pay anything to a surrogate mother in Canada, courts do not make inquiries about the financial or other terms of the surrogacy arrangement. Nor do they concern themselves with the intended parents' competency.
A surrogacy-parentage order has never, to my knowledge, been refused in Canada, except in Quebec, and in only one case has a surrogate mother objected after birth to passage of parentage.
Recently, British Columbia adopted a more simplified law. Parentage is passed to intended parents if there is a preconception written agreement between them and the surrogate mother, she consents post-birth to surrender, and they assume responsibility for the child.
No court order is required; parentage passes when the birth registration is filed with Vital Statistics. If any uncertainty arises, however, the parties can apply for a court order.
In contrast, Quebec actively discourages surrogacy and at least one court has refused to permit parentage to pass even when the intended parents sought to adopt the child with the surrogate mother's consent.
While Quebec may be the Canadian outlier, its law is more consistent with laws around the world. Surrogacy is prohibited, highly regulated or actively discouraged by law or professional bodies in most countries.
Why? Out of concern or belief vulnerable women will be exploited; women and newborns will be trafficked or international adoption protocols circumvented; the practice puts a price on human bodies and violates religious norms; and only heterosexual married couples are competent parents.
France, for example, refuses to recognize parentage or to grant citizenship to the 400 children born each year as a result of French citizens entering a surrogacy arrangement with a surrogate mother resident outside of France.
But a handful of countries, including India and Ukraine, encourage a commercial surrogacy market because it is a way for women to make money. Foreigners flock there because waiting lists are short, costs are low and local laws facilitate the arrangements.
Canada is one of only 17 countries that permits any form of surrogacy. We don't know how many Canadians enter surrogacy arrangements -- though a best guess is a surrogate baby is born every day in Canada.
Federal law prohibits a surrogate mother from receiving any compensation on the assumption that permitting only altruistic surrogacy will address some of the concerns.
Provincial laws govern birth registration and determine parentage but most provinces, including Manitoba, have not had a serious debate about how provincial laws address the potentially problematic aspects of surrogacy. Should parentage laws be used to address these problems?
Post-birth consent by the surrogate mother and judicial oversight are features of most surrogacy-related parentage regimes in countries that permit surrogacy, including Britain and Australia. These requirements may promote good relationships between the surrogate mother and the intended parents before, during and after the pregnancy and they provide a forum for more inquisitive dispute resolution should the need arise.
But post-birth parentage laws in Australia and Britain also require a review of all financial exchanges between the parties and intended parents' competence. Such requirements do not do much to protect women against exploitation because, after the birth, surrogate mothers are almost never reluctant to hand over children to intended parents and they do not want the unanticipated burden of parentage. They are also time-consuming, invasive and expensive.
We should not lose sight of the fact women can be exploited through surrogacy arrangements. This concern is real in some countries such as India where commercial surrogacy is actively fostered and is possible in other jurisdictions. This concern, however, is probably much better addressed -- in all countries -- by robust preconception ethical frameworks governing professionals assisting with surrogacies, which ensure the surrogate mother's voluntary and informed consent to participate in surrogacy, preserve her personal autonomy during pregnancy and protect her financial interests.
Post-birth consent by the surrogate mother and minimal judicial oversight give some protection against exploitation of surrogate mothers and the children they bear.
However, given the remarkable absence of conflict between surrogate mothers and intended parents in Canada, perhaps British Columbia has done the right thing by abandoning mandatory judicial oversight. It is in everyone's best interests to establish the child's parentage quickly and with certainty soon after birth.
By passing a law clearly giving effect to either minimal judicial oversight or administrative review by Vital Statistics, the Manitoba government will ensure everyone's interests are better protected than is the case with the current ad hoc process.
Karen Busby is a professor of law and director of the Centre for Human Rights Research, Robson Hall, University of Manitoba.