Current Uniform Acts

Assisted Human Reproduction Working Group Report 2009



D.  Evolving Law:

[36]    Existing provincial legislation as it relates to parentage generally now recognizes the birth mother as the mother even in surrogate situations and, based on presumptions, defines who the other parent is.  As well, the same presumptions apply where AHR was used as in cases of natural birth.  There has been traditionally an acceptance that a child has a maximum of two legal parents, but that other adults can take on parenting roles through their actions and relationship with the child or the child’s parent.

[37]    The Ontario Court of Appeal case of A.A. v. B.B. (see attached Appendix A: Review of Case Law) recognized that a child can legally have two mothers and a father.  The case, while argued by some as leading to a reordering of parental rights, is also argued as more related to the development of methods of conception and parenting and the role of parens patriae:[22] “…the case turns not on the sexual orientation of the parents, but rather on the applicability of the parens patriae jurisdiction and the doctrine of the best interests of the child….”[23] and it is a case of the court acting to fill a perceived legislative gap.

[38]    A different result was reached in a  New Zealand case of P v K[24], where the donor who gave sperm to a lesbian couple on the basis of a written agreement that he would have a role in the child’s life, including access, applied to be considered a “parent” under legislation that would give him rights of guardianship and contact.  The court ultimately held that he was not a “parent”, but rather a donor, but found that he could have “guardianship” rights along with the lesbian parents.  The court took into account the agreement between the parties, the child’s best interests, and the right of the child to know his parents under the UN Convention on the Rights of the Child.

[39]    The New Zealand Law Commission Report concludes the discussion on this issue by stating that:

In conclusion, the international judicial approaches to the difficulties facing families created by known-donor insemination are diverse.  In all cases the courts are constrained by legislative schemes that usually make no provision for the legal parenthood of a same-sex partner or a known donor father who had agreed with the women to be a full legal parent to the child.[25]

[40]    However, the issues go beyond the three parent scenario and involve a potentially increasing array of biological material.  For example, a recent UK proposal to mix the nucleus from one egg with an egg from a donor along with the sperm donor means that the child would have three genetic parents.[26]  If we consider the potential for partners of these donors to be potential parents, then this creates a potential of six parents, and, if none of the genetically related persons or their partners intend to parent but rather intend to donate to another couple, then this creates the potential for eight parents.

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