Lawyer files constitutional challenge against Manitoba for outdated parentage laws

A Winnipeg lawyer filed a constitutional challenge Thursday that calls on the Manitoba government to modernize how legal parentage is defined for couples who have children through assisted reproduction.

Robynne Kazina, a family and fertility lawyer and partner at Taylor McCaffrey LLP, says Manitoba’s current legislation is outdated, unconstitutional, and discriminatory against same-sex couples and couples experiencing infertility.

“It’s to ensure that the child’s parents are legally and properly recognized as that child’s parents upon birth, and that there’s no additional need for an adoption or further court orders after the birth,” Kazina told Global News.

Under the current Manitoba legislation, when a child is born through assisted reproduction, the intended parents often have to go through a court order or an adoption process to be declared as the legal parents of their own child, if they have no biological connection, said Kazina.

In some cases when a surrogate is involved, both the surrogate and their partner will be listed as the legal parents on the child’s birth certificate.

“It’s difficult to explain to the parent that they need to adopt their own child,” Kazina said.

Tweet This Click to share quote on Twitter: "It's difficult to explain to the parent that they need to adopt their own child," Kazina said.

“Pre-conception, it was always intended for them to be a parent. They were involved in the process and yet when their baby is born, I have the difficult news to explain to them that really, under Manitoba law, you’re not legally a parent without further steps of a court order or adoption.”

British Columbia, Ontario, and Saskatchewan have modernized their legislation to allow couples to declare parentage when the child is born through assisted reproduction.

In 2014, the Manitoba Law Reform Commission did a study on assisted reproduction and legal parentage, and recommended that the Manitoba government update their legislation.

Six years later, they legislation still hasn’t changed.

This brings on unnecessary emotional and financial stress for parents, as the process can cost couples thousands of dollars, said Kazina.

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It’s a challenge experienced by many Manitobans, including couple Jill Stockwell and Courtney Maddock.

The couple says becoming parents was important to them, but it was a lengthy process.

“In total, it took about two years from the time of referral to the time I got pregnant,” Maddock said.

But when their daughter CJ was born, Stockwell wasn’t considered the legal parent without an adoption order, forcing her to adopt her own child.

“I was part of the process right from the very beginning and it feels not right for me to be considered not a parent,” Stockwell said.

Stockwell said she was going to file a human rights complaint, when she heard about the court challenge and joined it.

Both Maddock and Stockwell say they hope this constitutional challenge leads to updated legislation that treats all parents equally.

“I just hope to see that other parents don’t have to go through this and that they don’t have to feel less like a parent like Jill has felt in the last couple years,” Maddock said.

“And she isn’t less than a parent, she’s CJ’s mom. And it will be nice that it will be legal and official, but Jill is always and always will be CJ’s mom.”

Tweet This Click to share quote on Twitter: "And she isn't less than a parent, she's CJ's mom. And it will be nice that it will be legal and official, but Jill is always and always will be CJ's mom."

The legislation provides the same challenges for couples experiencing infertility issues.

“When I was 15 I was diagnosed with something called MRKH,” Tanis Mauws said. “It basically means I was born without a uterus. So I knew pretty young that I wouldn’t be able to carry my own child.”

Mauws said she was lucky to have two family members offer to be her surrogate, but the birth registration process was a complex and lengthy process.

“We did a declaration of parentage, so we proved that we are genetically the parents,” she said

“It is kind of appalling. Here it is [2020] and we still haven’t looked at these laws that are extremely archaic. There’s so many ways to be a mom and a parent these days, the laws need to reflect that.”

Tweet This Click to share quote on Twitter: "It is kind of appalling. Here it is [2020] and we still haven't looked at these laws that are extremely archaic. There's so many ways to be a mom and a parent these days, the laws need to reflect that."

The constitutional challenge has a hearing set for November.

-With files from Richard Cloutier