1.     Surrogacy

There are generally two options for gay men who wish to use a surrogate to conceive a child:

  1. Traditional/Altruistic Surrogacy: the surrogate woman becomes pregnant with her own egg and the sperm of the donor or prospective father;
  2. Gestational Surrogacy: a donor egg is inseminated with the sperm of a prospective father in a lab, and then implanted in the surrogate.

In the case of gestational surrogacy, medically assisted IVF is a requirement. This may also be the case for traditional/altruistic surrogacy. However, Surrogacy and IVF are regulated under the federal Assisted Human Reproduction Act [1] (AHRA), which, along with its associated agency, Assisted Human Reproduction Canada, falls under the purview of the federal Ministry of Health, and is subject to directives issued by the Minister of Health. As such, both are subject to a directive promulgated in 2000 entitled, Technical Requirements For Therapeutic Donor Insemination. Section 2 of this directive outlines those from whom medical practitioners are prohibited from accepting sperm, and they include “any man who has had sex with another man, even once, since 1977” (Health Canada 2000, s. 2.1(e)(i)). The federal government has established a “Special Access Program,” which allows a woman who is otherwise prohibited from using the sperm of certain known donors (e.g. gay men) to ask her doctor to apply to the Minister of Health for special permission to use that sperm if she can demonstrate “exceptional circumstances.” It is typically through this program that gay men gain access to assisted reproductive technologies such as IVF and surrogacy.

a.     Two Parents

When surrogacy is employed by a gay male couple—either gestational or traditional/altruistic—and one partner is the biological father of a child, it is never possible for both members of the couple to register as the child’s parents at birth. Rather, an adoption order is always required.

Upon the birth of a child via surrogacy, the child’s birth registration must list both the surrogate as the “mother” and the biological father as the second parent. No sooner than seven (7) days after the child’s birth,[2] an adoption order may be filed to have the third, non-biological parent recognized (Child and Family Services Act 1990, s. 137(3)). Under this adoption scheme, only two people may be recognized as the child’s parents at any one time. The implication is that short of a court declaration (see below), three parents may not be legally recognized through regular channels for adoption and birth/parental registration. The moment an adoption order is approved, all other parents cease to be recognized as parents, unless they are the spouse of the new adoptive parent (e.g. the biological father remains a parent when his spouse adopts the child). Where the desired outcome is the recognition of a gay male couple as the sole parents of a child, the surrogate mother (either gestational or traditional/altruistic) must cede her parental rights in order for the adoption order to be approved for the third, non-biological parent. A new birth certificate may then be issued for the child, recognizing the gay male couple as the child’s parents.

Note that an adoptive parent is obliged to comply with certain requirements and processes, such as a criminal record check and fees ranging from $1000 – $2000. Furthermore, as it is not legal to register a child’s birth with the last name of a non-parent, non-biological partners are barred from sharing their name with their children at birth (where that name differs from that of the biological mother/father), unless they petition to change the child’s name after an adoption has been approved. This includes the option of providing the child with a hyphenated name, incorporating that of both intended parents.

b.     Three Parents

Typically, only two people can be recognized as the legal parents of a child at any one time. However, in a 2007 Ontario Court of Appeals case, Rosenberg J. A. ruled that the law as it currently stands provides no recognition for three parent LGBTQ families, and thereby has the effect of treating such families with discrimination. In his view, there are “gaps” in public policy and legislation that do not represent the realities of LGBTQ families (A.A v. B.B. 2007, (ONCA 2)). Nonetheless, the law has yet to be amended.

Currently, there is no precedent for recognizing three parents where two are male and one is female. However, the case mentioned above did establish a precedent for recognizing two female and one male parent, under the following circumstances:

a)      A biological mother has conceived a child using sperm from a known donor, and

b)      The known donor does not wish to cede his parental rights and recognition; and

c)       The biological mother has a partner who also wishes to be recognized as the child’s parent; and

d)      The biological mother and biological father both agree to recognize the biological mother’s partner as the child’s third parent.

Under these circumstances, the three parents may apply to a court for a declaration of parentage for the third, non-biological parent. Such applications are assessed on a case-by-case basis, and are subject to the prerogative of the court. The entire legal process may cost approximately $4,000. It is conceivable—though untested—that a similar outcome may be accepted by an Ontario court in the case of a gay male couple applying for parental recognition alongside a female surrogate.

 

2.     Single Parent (Father)

It is not legal in Ontario to register the birth of a child without including the biological mother on the registration and, subsequently, the birth certificate. As such, if a biological father who has conceived via surrogacy wishes to be the only legally recognized parent of the child, the surrogate mother must legally cede her parental rights and recognition.[3]

 

3.     What Your School Needs

If a same-sex couple or three-parent unit encounters discrimination at their child’s school, any combination of a birth certificate and/or declaration(s) of parentage (either through an adoption order or court-issued declaration of parentage) that together verifies each person’s parental status should be legally sufficient to dispel any opposition.

 

 


[1] Note: Regulations under the Assisted Human Reproduction Act have yet to be enacted; their promulgation could affect the information contained in this document. Additionally, a recent reference by the Supreme Court of Canada (Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457) on the constitutionality of the AHRA has yet to be reviewed for its implications on the present information.

[2] This time frame may be longer for surrogacy; i.e. surrogates may have a longer time frame in which to decide if they wish to cede their parental rights. Confirmation is forthcoming.

[3] The exact process and requirements for ceding parental rights by a surrogate may be determined by forthcoming regulations and the implications of the Supreme Court Reference, supra 1. Further research and analysis is forthcoming.