Current Uniform Acts

Assisted Human Reproduction Working Group Report 2009



III. Defining the Policy Issues A.   Why is Parentage Important?

[23]    There are two related policy questions that must be resolved:
  • who are the legal parents of a child at the moment of birth; and
  • who are entitled to register as the child’s parents
[24]    These issues may seem to be the same, but they are quite different.  Typically, common law provinces and territories have child status legislation that defines who a child’s parents are.

[25]    In addition, they have birth registration provisions in their vital statistics legislation that require and permit the administrative act of registration of parentage.  There is substantial interplay between these two types of legislation.  For example, a man who certifies the birth registration is presumed to be the father in several child status statutes, and likewise, a person who receives a declaration of parentage under child status legislation is generally permitted to amend birth registration.

[26]    To accommodate same-sex parentage and to respond to court challenges, some jurisdictions have changed their registration process without changing their child status law.  Proceeding in this manner allows the administrative fact of registration to drive the legal child status policy development process.  Because child status is a legal status and registration is a reflection of that status, the policy work on determining parentage must precede or occur together with work to change vital statistics legislation.

[27]    It is important in this discussion not to confuse the issues of parental status and parenting roles/responsibilities. Provincial and territorial family laws recognize that persons who are not parents may have responsibilities or roles for children based on their relationship to the child and in the child’s best interests.  So even where a person is not recognized as a legal parent, that person may still be found to have some parenting role in the life of the child in terms of a person of sufficient interest under custody and access regimes or as a person in loco parentis

Legal Parentage:

[28]    The 2005 New Zealand Law Reform Commission Report on legal parentage points out the focus of reform:

[29]    There are legal responsibilities and duties that parenthood places upon adults in relation to the children they have brought into the world.  The “status” or powers and rights that go with parenthood are not “benefits”, but are the means by which parents’ responsibilities to children can be exercised, so as to provide the security and protection that children, as vulnerable members of our society, need.  In order to exercise the full range of parental responsibilities, the relevant adults need to have the full powers and rights of parenthood.[15]

[30]    The Report devotes a chapter to explaining what legal parenthood is and why it is important and states:

A legal parent is to be differentiated from the general use of the word “parent”, which may refer to the genetic, biological or social relationship a person has with a child.  At present, a child can have only two genetic parents, a genetic mother and genetic father, and the law has only ever recognised two legal parents for a child.  Surrogacy techniques, however, mean that a child can have three “biological parents”, and recent technological developments mean that it may soon be possible for a child to have two genetic mothers plus a gestational one as well as a genetic father. [16]

Registration:

[31]    Since 2001, there has been development in the law of birth registration, mostly through successful challenges to existing registration regimes.  However, the issue of child status – who are the parents of a child at birth – has been less litigated, and is less understood by the public.[17]

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