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Focus: Surrogacy law goes backward, say lawyers

Focus On: Family Law/Trusts & Estates
|Written By Judy van Rhijn

The recent passing of the All Parents Are Equal Act in November 2016 represents an opportunity lost for the development of surrogacy law in Ontario, say some lawyers. The bill removed the courts’ progressive approach to enforcing surrogacy agreements, which surrogacy lawyers fear will leave the area open to exploitation.

“There are good things in the bill dealing with gamete donation, but, unfortunately, not for surrogacy,” says Sara Cohen, of Fertility Law Canada, in Toronto.

“Surrogacy just came along for the ride on this one and it was the loser. The only benefit here for surrogates is that it costs people less for getting the parentage side done.”

The act alters the accepted practice of obtaining a judicial declaration of parentage after the birth of the child with a process where parties rely on a surrogacy agreement and independent legal advice before conception, and an administrative process for registering paternity by consent after birth. Surprisingly, it also provides in s. 9 that the surrogacy agreement is legally unenforceable, but it then says that it may be used as evidence of the parties’ intentions.

“[The act] says we’re going to listen to the agreement and rely on it for intent, making the agreement more important,” says Nancy Lam, a surrogacy lawyer in Toronto.

“Meanwhile, there’s this bizarre section that says surrogacy agreements are not enforceable. No matter what you say in the agreement, it could always be overridden. This is a key issue. I believe as times progress and we rely on the act, more problems will become apparent and there will be challenges to it.”

Cohen says the new agreement isn’t appropriate because, “in reality, you don’t have a situation where surrogates try to keep babies.”

“It does not happen frequently in Canada,” she says.

“Unfortunately, it is more likely that parents will change their mind, but now the agreement is unenforceable against the intended parents, too. It’s the wrong move.”

Prior to the legislation, Cohen says, agreements relating to gestational surrogacy — where the birth parent has no biological relationship to the child — were at least likely to be enforceable in terms of intention to parent. That contrasted with traditional surrogacy agreements, where there is a biological connection, which, Cohen says, were unenforceable. Gestational surrogates accept donated embryos and are usually unrelated to the intended parents. Traditional surrogates contribute their own eggs. They are often family members or close friends.

Cohen estimates that about 95 per cent of surrogacy in Ontario is gestational.

Kelly Jordan, a partner at Jordan Battista LLP in Toronto, says the legislators have moved the safeguards from the judicial declaration at the end of the process to the front end.

“They think independent legal advice and the surrogacy agreement are enough of a safeguard to register parentage with the surrogate’s consent,” she says. “The policy is for lawyers to safeguard the process rather than judicial declarations.”

Jordan refers to s. 6, which says that in the case of surrogacy, the birth parent is not recognized in law to be the parent if there is a “relinquishment of an entitlement to parentage by a surrogate under section 10, or to a declaration by a court to that effect under section 10 or 11.”

“It provides if everyone doesn’t consent, they can apply to court for a declaration, but the checks and balances are less stringent than I wanted,” Jordan says.

“I have done many declarations and I have observed that the Superior Court judges who review the agreement took their role very seriously to prevent duress and fraud.”

Michelle Flowerday of Flowerday Law in Toronto agrees.

“I believe this will prove to be a mistake in some cases,” she says.

“It is in the best interests of children to have some judicial oversight when a child’s legal parentage is at issue.”

Cohen is deeply concerned that it is left to the parties to confirm that they have met the requirements of the act and that the surrogate consents to relinquishing the child.

“We had a situation where judicial oversight stopped a lot of fraud in the traditional surrogacy context, and we had growing legitimacy in gestational surrogacy,” she says. “One day we will look back on this with regret. How could we let court oversight of the agreement and preconception concerns go?”

Another glaring problem for Cohen is that the bill gives a surrogate seven days to change her mind after birth and requires joint medical decision-making between the parents and the surrogate in the interim.

“This is an anomaly that seems to come out of left field, based on a model more akin to adoption than third-party reproduction,” she says. “This could prove nightmarish for hospitals and health-care providers if the child requires medical care, especially if the surrogate is gone.”

Since the legislation came into force on Jan. 1, Cohen has been fielding phone calls from hospitals.

“Hospitals have had lots of questions for me, trying to understand the risks they’re taking,” she says.

“They have definitely been confused about who they should be listening to, whose names to put on the documents and any possible liability on them. The surrogate usually goes home the same day as the birth. Should the nurse try to figure out what the surrogacy agreement says?”

Flowerday says the waiting period puts intended parents in a difficult position.

“There are a multitude of scenarios which could arise in the first week of a child’s life where a legal limbo period would not be very helpful in the least,” she says.

“Also, it flies in the face of the removal of judicial oversight. In one breath, the government is acknowledging the importance of the relinquishment and acceptance of parental rights by having the surrogate and the intended parents wait seven days post-birth before swearing a statutory declaration, and yet the government has removed the involvement of the judiciary to ensure that certain standards are met.”

Jordan says the seven-day waiting period makes sense if the law recognizes traditional and gestational surrogates the same way.

“A traditional surrogate couldn’t give up rights to the child before the child is born,” she says.

In fact, she sees the seven-day joint period being subject to the gestational carriage agreement as a significant improvement.

“Before, the birth mother was the parent regardless of whether she was the genetic mother or not,” she says.

“I’m sure intended parents would like to automatically have parentage from birth, but because they are treating gestational and traditional the same, it wouldn’t be appropriate. Once hospitals become familiar with it, this will assist.”

Jordan points out that if there are problems, the parties can still go to court.

“Parentage is only registered if everyone is consenting,” she says.

In fact, the registration part of the process has been well received by clients.

“The registration process for parentage has gone well,” says Cohen. “It is one week or two faster than when we had court applications. So far, the process is a bit difficult, but when people become more familiar with the documents, that will sort itself out.” Cohen says clients like the approach “because it chops off a huge part of the process.”

“There are two steps to the process — having the agreement in place and the parentage process,” she says. “Quite frankly, the judicial declaration was the more expensive of the two processes. It’s encouraging that costs are down.”

Lawyers agree that the problems with the act will not stop people from using surrogacy. “It won’t stop anyone,” agrees Lam. “Laws are so slow and people aren’t getting any younger.”

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