It certainly isn’t unusual to find that the law in general, and family law in particular, has lagged behind social progress and no longer represents the reality of our daily lives. This is currently the case with legislation surrounding reproductive technology.
While Ontario was the first province to recognize same-sex marriage back in 2003, we have lagged far behind other provinces in recognizing legal parentage of children of same-sex parents; particularly those conceived using assisted reproductive technology.
If a man is married to woman who gives birth to a child, he benefits from a legal presumption that he is the father of the child and can place his name on the child’s birth certificate, even if the child was conceived using donor sperm. For children born to two women using a sperm donor, the woman carrying the child is the legal mother. However, the non-carrying mother is not automatically the legal parent of the child and must take further legal steps to be registered on the child’s birth certificate, even if she is married to the biological mother of the child and is, for all intents and purposes, the child’s parent. The sperm donor may also be considered the child’s legal parent if no further steps are taken to sever his rights and obligations to the child.
Bill 137 (also known as Cy and Ruby’s Act) is a Private Member’s Bill which proposes to amend the current legislation in order to allow the intended parents of a child to be legally recognized as such, without requiring them to take further steps that are not required of heterosexual couples. It also proposes to clarify that a sperm donor is not a legal parent by virtue only of a donation.
While family lawyers have widely supported the Bill’s passing, it has also faced criticism for failing to properly address the legal grey area of surrogacy. Surrogacy issues are expected to arise with increasing frequency in the coming years and the current legislative framework leaves key questions unanswered, even if Cy and Ruby’s Act is successfully passed.
As attitudes and options evolve surrounding how families are defined and created, the law will need to develop along with them. Cy and Ruby’s Act is a step forward, but there certainly is more progress to be made.
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