The province’s current legislation on legal parentage is outdated and discriminatory to families having children through assisted reproduction, according to a Winnipeg lawyer.
Taylor McCaffrey LLP family and fertility lawyer Robynne Kazina is filing a constitutional challenge calling on the Manitoba government to update their definition of a legal parent.
Under current legislation, many Manitoba couples who have children through assisted reproduction cannot be considered a legal parent when the child is born without a further court order or adoption, if they have no biological connection to the child.
Kazina says this has emotional, costly, and time-consuming impacts on many same-sex couples and couples experiencing infertility, but it also has an impact on people looking to help others become parents through surrogacy.
It’s something same-sex couple Brandon Overland and Austin Hoff and surrogate Brianna Darbel are familiar with. Darbel, who lives in Manitoba, was the surrogate for the BC couple’s daughter. Their daughter, Quinn, was born in Manitoba last year.
But Darbel she was frustrated that she was listed as the parent on the birth certificate.
“I was choosing to become a surrogate to help someone else have a family and help them have a child, and I was done with my own family and having my own children,” she said.
“Being listed on the birth certificate felt wrong morally and ethically just because she’s not our child.”
Darbel says she was also shocked to find out that her husband would also be on the birth certificate, even though he had no involvement in the process.
Kazina says it’s a frustration to many surrogates in Manitoba.
“She’s not the mother, she doesn’t have a parental role to that child and yet she and her husband especially, whose even further removed, are being listed as parents on the birth certificate. That’s not what the intention is of everyone involved in bringing this child into the world,” Kazina said.
“I’ve heard a lot of surrogates say it sort of feels like a fraud that I’m signing these documents as a mother,” she added. “It sort of feels like a fraud that I am signing a consent to an adoption of the child saying I am the birth mother, but I am really not.”
Hoff and Overland had to return to BC to pursue an adoption of Quinn.
“It was a time when we were trying to prepare our home and prepare ourselves to become parents,” Overland said.
“It was an exciting time and also a happy time, but then this situation came up and it was a very difficult, probably the most difficult in the whole process. We were left trying to figure out how to become the legal parents of Quinn.”
“I found that really disheartening that they didn’t have the option to do a declaration of parentage they had to do a full adoption of their own child,” Darbel said. “They are her parents in every way shape and form, so to have to go back to BC to pursue a legal adoption of their own child is just very heart-wrenching and its also very confusing.”
Other provinces have modernized their their legislation to reflect parents having families through assisted reproduction, including BC, Ontario, and Saskatchewan. In 2014, the Manitoba Law Reform Commission did a story and recommended the provincial government update their legislation on legal parentage, but that still hasn’t happened.
Kazina says it’s forced some surrogates to travel out of province to give birth.
“In some situations, surrogates have been asked to travel to Kenora to give birth, because in Ontario parents can be recognized right upon birth,” she said.
“Obviously for the health of the child and the health of the surrogate, they really should be following through where they received their prenatal care and obviously have their family and supports. I don’t think anyone would say it’s ideal for a woman who is 38 weeks pregnant to be travelling out of the province.”
Both Overland, Hoff, and Darbel hope the legislation can change to prevent other couples from going through the same financial and emotional stress.
“I would love to see the Manitoba surrogacy laws and reproductive laws updated to reflect the modern technology that people are using to create their families,” Darbel said.
A hearing date for the constitutional challenge has been set for November.