Who Is A Parent?
There is a lack of legislation in New Brunswick to provide a framework for using artificial reproductive technology to build a family in the 21st century. The existing legislation is heavily focussed on determining paternity and eliminating “illegitimacy” as a legal construct. There are several presumptions of paternity, primarily on the basis of the potential father’s relationship with the “natural” (biological) mother. The Family Services Act also authorizes the Court to order blood tests to determine paternity.
The All Families are Equal Act, 2016, S.O. 2016, c. 23, has generated a great deal of interest in the law of parentage in Ontario by updating the legislation in an to attempt keep pace with the evolving nature of modern families. With the recent passage of this legislation, it provides an opportunity to review the status of corresponding laws in New Brunswick.
In New Brunswick, parentage is governed by Part VI of the Family Services Act1 and formally registered under the Vital Statistics Act2. Notably, neither piece of legislation has been significantly updated in approximately 35 years and during that time there have been unforeseen medical advances and significant shifts in social attitudes.
Parents are defined as a “mother” and a “father” and a person is only the child of his or her “natural parents” (or adoptive parents, if applicable). The language in the Family Services Act is clearly reflective of the time of the legislation and appears primarily concerned with eliminating any differential treatment between children of married and unmarried persons. People who demonstrate an intention to treat the child as their own may also fall within the definition of “parent” for the purposes of making custody or access applications but this type of application would not change parentage and would likely be unsatisfactory for parents intending to build their family through artificial reproductive technology.
Further, consider the example of a same-sex couple (male or female) using a gestational surrogate, where the genetic material (ova and sperm) may or may not have come from one partner or where all genetic material is donated (either anonymously or not). The Vital Statistics Act is cloaked in heteronormative language of “mother” and “father” in relation to the child’s birth registration and there is no consideration in the legislation for “intended parents” through the surrogacy process. In fact, in a 2010 case3 of a mother and father who provided the genetic material for conception but used the assistance of a gestational surrogate, there is reference to a memorandum from the Registrar General under the Vital Statistics Actthat opined that the surrogate mother is the mother of the child and that a declaration of parentage from the Court would be required in order to recognize the intended parents.4 The Court did not provide commentary on the correctness of that opinion but granted the declaration of parentage in favour of intended (and genetic) mother and father.
The Gray Area of Parentage
Questions, therefore, would arise as to how a same-sex couple would register their child’s birth (although there is a provision in the Vital Statistics Act that allows “persons standing in the place of the parents” to register a birth if the father is unknown or unwilling and the mother is unable). Much of this could be outlined in family building agreements although the resiliency of such agreements has not been tested in this province. If the registration cannot include the intended parents (or is rejected by the Registrar), then the alternatives are to apply to the Court for a declaratory order establishing parentage or to proceed with an adoption. Both of these options can be time consuming and costly.
In the decision outlined above, a gestational surrogate was used and all genetic materials came from the intended parents. It was perhaps an “easier” case for the Court, given the biology of parentage is the primary consideration in the Family Services Act. In a more recent decision5, the Court dealt with a more complicated situation whereby a heterosexual couple used an anonymously donated ova, the intended father’s sperm, and a (married) gestational surrogate, to build their family. The proper contractual relationships with all parties were in place well in advance of conception. The intended parents applied to the Court for declaratory relief in relation to the child’s parentage. The father sought to be declared the father as he was, indeed, the natural father but the statutory presumptions would have presumed that the husband of the gestational surrogate was the father. The intended mother also sought a declaratory order establishing that she was the child’s mother. The intended parents went one step further and sought declarations that the anonymous ova donor and the gestational surrogate and her husband were not the parents of the child. All parties were consenting to the relief sought. The Court followed an earlier decision of the Ontario Court of Appeal6 and used its parens partiae (inherent) jurisdiction to fill a gap in the legislation and grant the declaratory relief. The Court acknowledged that the Family Services Act did not contemplate the medical advances and forms of parenting outside of traditional, heteronormative models of parenting.
The conclusion would be that the Family Services Act and Vital Statistics Act are in need of updating to reflect the shifting social and legal framework in which families are built and children are raised. If the underlying goal is to have children’s best interests considered, then having legislation that meets the long-term security interests for children by providing legally recognized familial relationships is imperative.
Prospective parents who are considering the use of artificial reproductive technology should be encouraged to use contracts generously with all third parties involved in the process (i.e. surrogates and gamete donors) and to clearly document their intentions with respect to parentage of children born through these methods in advance of conception.
1 S.N.B. 1980, c. F-2.2
2 S.N.B. 1979, c. V-3
3J.A.W. v. A.B.W., 2010 NBBR 414, 2010 NBQB 414 [J.A.W.]
4 J.A.W., ibid, para. 31.
5M.A.M. v. T.A.M., 2015 NBQB 145
6A.A. v. B.B.  O.J. No. 2