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Tuesday, October 6, 2015

Ontario MPP seeking to end legal limbo faced by couples who use egg and sperm donors

Imagine watching your wife cling to life after a difficult child birth, only to face the added uncertainty that you might not be able to take your newborn home with you if the mother dies.

Kirst Mathers McHenry faced that horror when her daughter was born. She watched with anxiety as her wife’s heart “misbehaved” through the birth and in hospital. Luckily, both moms left the hospital with their daughter, but their experience exposes a big gap in Ontario family law.

Parents in same-sex couples, those who use a known sperm or egg donor, and transgender people who give birth currently face a loophole in the Children’s Law Reform Act.

Though non-biological parents can put their name on a birth registration form in hospital, in many cases it’s not legally binding unless they later adopt their own children. Why? Because the law as written means the definition of those immediately deemed parents only applies to a man and a woman cohabiting. That “presumption of parentage” is further complicated and even more murky when egg or sperm donors are used, especially when they are known to the couple having the child.

It sounds complicated, but it boils down to the fact that “anyone using assistive reproduction could be affected, as well as other families,” said family lawyer Joanna Radbord, who has had to go to court to clarify parenthood of her own children. “Unless your family consists of a cisgender man who’s partnered with a cisgender woman, who have sexual intercourse which results in a baby, and that’s it, unless that’s your family, you’re left out.

Parenting is not about genetic material, it is about love and responsibility
“This has been outdated for years. There’s no acknowledgement whatsoever of any family diversity,” she said.

Now, Parkdale-High Park MPP Cheri DiNovo is seeking to change the law to ensure that families of all shapes and sizes are immediately recognized as parents at birth. A bill she plans to introduce next week would amend the law to allow same-sex parents, families who use sperm and egg donors, and even three or more parents to be recognized on birth certificates. That means a sperm donor as well as the lesbian couple raising the child could all be legally recognized, or, alternatively, just the couple that is parenting full-time.

“Parenting is not about genetic material, it is about love and responsibility,” DiNovo said. Last week, MPPs voted in favour of a motion from Glenn Thibeault to change all government forms that relate to parents from referring to “mothers” and “fathers” to referring to “parents” or “guardians” to be more inclusive. DiNovo said she supported that effort as well, but this goes much further and makes necessary amendments to law. Her effort would also make birth certificates gender neutral so, for instance, a transgender man who has a child would not need to be listed as the “mother” simply because he is the birth parent.

It follows a 2013 move in B.C. to do just the same, and clarifies a point of law many were unaware affected them after same-sex marriage was legalized 12 years ago in Ontario, Radbord said.

This has been outdated for years. There’s no acknowledgement whatsoever of any family diversity
Andy Inkster, a health promoter with the LGBTQ Parenting Network at Sherbourne Health Centre, said the amendment would add much-needed clarity for new parents who are already running around to doctor’s appointment. They don’t need the expense or the effort of going through a lawyer to legally adopt their own children.

“This affects not just LGBT people, it’s going to make things simpler who are doing surrogacy, it’s going to make things clearer for people doing egg donation or sperm donation,” Inkster said. He noted the pending announcement of government funding for in-vitro fertilization could make this problem even more common than it already is. “It means anybody, regardless of who is in their family, is on the same footing.”

He said it will bring “clarity and simplicity” to the birth process, when currently LGBT parents are faced with an extremely complex legal limbo. His health centre has two eight-page information packets just to guide parents through the complex process, in addition to a legal information kit. Because same-sex couples won the right years ago to put both parents names on birth registration, many don’t realize that isn’t legally binding. He said DiNovo’s bill will provide a “much-needed update” to a problem he encounters all the time.

PC leader Patrick Brown said his party supported the motion last week and would support any effort to increase inclusivity in the law; however, he doesn’t see why forms can’t both keep “mother” and “father” on them as well as add “parent” and “guardian” so everyone feels their preferred title is an option.

DiNovo has had much recent success in garnering all-party support for LGBT rights initiatives. She helped pass Toby’s Act, which enshrined transgender rights in Ontario human rights law, and a bill to ban conversion therapy of LGBT youth in Ontario.


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