Posted on behalf of the Access to Justice & Law Reform Institute.
Halifax, NS: The Access to Justice & Law Reform Institute (formerly Law Reform Commission of Nova Scotia) is happy to report the release of their Final Report on Extending Legal Parentage in the Context of Surrogacy and Egg, Sperm and Embryo Donation. The Report can be accessed on our website at www.lawreform.ns.ca and directly here.
Nova Scotia is the only jurisdiction in Canada that lacks parentage legislation. At present, our parentage laws are based on two archaic common law presumptions: the woman who gives birth to a child is that child’s mother, and her husband is the father. Mechanisms to prove (or disprove) parentage outside of these presumptions are largely based on biology proved by genetic testing. Reliance on this archaic common law rule has implications for the parentage of children born in 2SLGBTQIA+ families, many of whom use surrogacy and assisted conception to conceive and has been recognized as unconstitutional in other provinces.
While the Province recently passed amendments to the Birth Registration Regulations and labelled these “parentage” for persons using surrogacy and assisted reproduction, these provisions merely allow certain persons to sign the birth certificate – they do not recognize legal parentage on birth. Further, these new regulations do not address the differential impact of parentage laws on 2SLGBTQIA+ families.
In our Final Report we address how modern parentage laws should extend legal parentage in situations where families are using surrogacy arrangements or sperm, egg or embryo donation to conceive a child. We recommend that Nova Scotia parentage laws should:
- Treat birth parents and their partners as parents where egg, sperm or embryo donation is used to conceive;
- Prevent egg, sperm or embryo donors from asserting parentage based purely on genetic factors;
- Clarify when a person is a sperm donor, and when a person is a parent;
- Simplify the recognition of intended parents via surrogacy;
- Provide a path to parentage of posthumously conceived children;
- Remove gendered language from our parentage laws; and
- Place the laws that may emerge from this report as a Part I to the Parenting and Support Act.
The Institute takes the position that, as social and cultural understandings of parentage change, so too should the law’s response. This Report addresses some of the longstanding gaps in Nova Scotia’s parentage law and seeks to bring the law in line with modern realities of family creation in our Province.