Ontario to Update Laws on Surrogacy and Parentage
Bill 28 – The All Families Are Equal Act
On November 29, 2016, Ontario passed a new law ensuring equal treatment for parentage and children across the province, while clarifying certain points in the existing parentage laws.
Bill 28, also known as the All Families Are Equal Act, 2016, will amend the Children’s Law Reform Act and the Vital Statistics Act. The new bill will recognize legal parentage whether the child was born to an LGBT couple or was born through assisted reproduction technology.
“Passing the All Families are Equal Act updates our laws so that all kids are treated equally by recognizing the legal status of their parents no matter if their parents are LGBTQ2+ or straight, and no matter if they were conceived with the help of assisted reproduction,” said Attorney General Yasir Naqvi.
“As a province that values diversity and inclusion, it's important that our laws reflect these important beliefs. I am proud of the progress this bill represents.”
This bill represents the first time Ontario has updated its parentage laws since 1978.
Updates to Existing Law
Listed below are some of the biggest updates that will take effect once the All Families are Equal Act passes:
One of the main focuses of this updated law is to correct the subtle use of discriminatory language against LGBT couples. The new law will be updated “to use gender neutral terminology where possible.”
Four Intended Parents
According to the new law, “up to four people” can be “recognized as the parents of a child without a court order,” provided all parties entered a written pre-conception agreement together, and one of the birth parents is included. This will allow families with two separate same-sex couples to raise their child with legal recognition as rightful parents.
No Court Order Needed
The new bill will also create a more convenient process for parents using surrogacy by decreasing the need to go to court. In the past, parents had to apply for a court order to obtain legal parentage after their child was born. Now, parents no longer need one, provided that 1) both parties sought independent legal counsel 2) entered a written pre-conception agreement and 3) the surrogate provides written consent relinquishing her right as a parent both before the conception and seven (7) days after birth.
The surrogacy piece in this legislation is perhaps more controversial. Like all other provinces, this legislation does not distinguish between gestational or traditional surrogacy. Now, all surrogacy agreements are unenforceable (whereas gestational agreements had been enforced in the past). An agreement is necessary, but after 7 days after birth is of no force and effect. A surrogate cannot consent to not being a parent until after 7 days after the birth. And, there is no longer any judicial (or other) oversight over parentage through surrogacy.. Basically, if the parties sign that they entered into a preconception surrogacy agreement, and had independent legal advice and then sign that the parents want to be the parents and the surrogate doesn't, that is all that is necessary for a birth certificate to name the intended parents as the parents.
Praise and Controversy
While the law has been applauded for clarifying the province’s stance on surrogacy and making the practice far more inclusive, others have criticized the change in language as an attack on traditional family values. Socially liberal politicians, on the other hand, believe that this bill is about closing the loophole forcing parents (mainly LGBT couples) to adopt their own children after using a surrogate.
“This is not about eliminating anybody’s rights,” argued Liberal MPP John Fraser, “it’s about recognizing people’s identity.”
The Canadian government states that the law will be effective as of January 1, 2017.
This may be one of the early steps towards a more inclusive and surrogacy-friendly country. Time will tell how the act affects public opinion towards surrogacy, but ConceiveAbilities supports any initiative the positions surrogacy as an inclusive practice for all families.
For more information on surrogacy laws around the world, visit ConceiveAbilities' blog today.