On 29 November 2016 the Ontario Legislature passed, unanimously, Bill 28, the All Families Are Equal Act (the "Act"). The Act, which was given Royal Assent on 5 December 2016 and which comes into force on 1 January 2017, amends the Children's Law Reform Act ("CLRA") and 40 other Acts respecting parentage to recognize children born through assisted reproduction as the children of the parents who initiated that process (the "Intended Parents"). This is the first time parentage laws have been amended since 1978, to reflect the nature of Canadian modern families in 2016.

The impetus for the Act was to correct the unequal situation that infertile or same-sex couples found themselves in following the birth of their children. The assumption at law had been that the woman giving birth to a child was automatically presumed to be a parent, which meant that a surrogate was listed as the child's parent on the original documents relating to the birth, and/or that a non-biological (intended) parent was not a parent of the child. Intended Parents had to file for a declaration of parentage with the court following the birth of their child to be declared to be the parents of the child and have their names (and not the surrogate's) registered on the child's birth documents. This came at a cost to the Intended Parents and delayed the processing of the documentation.

The Act makes a number of revisions to the CLRA to clarify who is a "parent":

  • a person who provides reproductive material/embryo for use in assisted reproduction is a parent only if determined to be so by the new Part 1 of the Act;
  • a child's birth parent is a parent unless that person is a surrogate and determined not to be a parent under the new Part 1;
  • the person whose sperm resulted in conception through sexual intercourse is a parent unless the parties agreed in writing in advance that that person does not intend to be a parent;
  • the spouse of a birth parent of a child conceived through assisted reproduction/sperm donation is presumed to be a parent;
  • up to four people can agree, in writing, to be the parents of a child.

The revisions also address issues of surrogacy:

  • to have any effect, a surrogacy agreement must be in place before a child is conceived and all parties must have received independent legal advice prior to entering into the contract;
  • a surrogacy agreement can allow for four Intended Parents;
  • a surrogate cannot consent to the relinquishing of her entitlement to parentage of the child before the child is seven days old. During that seven day period, the surrogate and the Intended Parent(s) share the rights and responsibilities of a parent with respect to the child unless the surrogacy agreement provides otherwise;
  • if the surrogate refuses to provide her consent, the Intended Parents may seek a declaration of parentage to enforce the implementation of the intention of the surrogacy agreement;
  • a surrogacy agreement is now deemed to be unenforceable at law, although it may be used as evidence of an intention of the parties to the agreement that the Intended Parents are the parents of the child.

The Act will certainly make it easier for Intended Parents to register themselves as the parents of the child. This will avoid the cost and time of obtaining a declaration of parentage. The government promises that an on-line registration process will be ready sometime in the spring of 2017. Until that system is in place, Intended Parents may mail in their applications to have the birth registered.

The provisions of the Act also afford better protection for surrogates and sperm/egg donors in terms of future obligations and liabilities. If they are not considered to be the parents it will be difficult to seek any support from them.

In those areas the Act is a welcome step forward and justifies its name.

The Act does, however, give rise to new concerns/insecurities for Intended Parents. Surrogacy agreements are now deemed to be unenforceable (previously this was the case for traditional, but not gestational, surrogacy arrangements). They are crucial, however, as means of establishing the intention of the parties over parental rights and obligations. A surrogate may statutorily refuse to give her consent to a relinquishment of parental rights. In such a situation, Intended Parents will have to resort to the courts (using the agreement as evidence of intentions) and spend more time and money than would have previously been the case on a (contested) declaration of parentage. It is not clear why the Ontario government thought these provisions were necessary. In our view, they may result in a greater marginalization of Intended Parents.

As a result of these provisions, surrogacy agreements should be executed prior to an embryo transfer procedure and should be drafted/reviewed by a lawyer knowledgeable in this area. The agreements should be drafted to grant Intended Parents clear and absolute authority over medical and other decisions during the first seven days after birth (longer if the surrogate refuses to provide her consent to a relinquishment of parental rights). The agreements should also contain strict indemnity clauses to address the issue of consent. There should be no ambiguity concerning the intention of the parties, and it should be clear that the parties acknowledge and agree that it is in the child's best interest that the Intended Parents be the parents from the moment of birth.

Fertility and assisted reproduction law is carefully regulated at both the federal (Assisted Human Reproduction Act) and provincial level. There are significant penalties for not complying with the legislation and significant risks if the requisite agreements are not properly drafted. We would be pleased to meet with you if you are thinking about having a child through assisted reproduction.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.