A need for provincial legislation on third-party family building

Provincial legislation dealing with third-party family building — particularly surrogacy — is lacking in Canada and there is a real need for a comprehensive legal framework to make secure families and to protect all parties involved in this process, says Toronto fertility lawyer Sara Cohen.

Cohen, founder of Fertility Law Canada at D2Law LLP, will present her discussion paper "Scrambled Eggs" on July 13 at the National Family Law Program, held in St. John’s, N.L., along with colleagues Ellen Embury and Alex MacNab.

Cohen prepared the discussion paper for the conference with D2Law LLP co-founding partner Anatoly Dvorkin.

Just as technology has progressed to allow such processes as In Vitro Fertilization (IVF), so has society’s understanding of what makes a family, she says.

“Children conceived through assisted reproductive techniques (ARTs) and non-heteronormative family building is prevalent across Canada,” she says. “Provincial law must consider these families too and draft legislation that is inclusive and non-heteronormative, in terms of words used, parental presumptions and recognition of different family structures (including single parents and more than two-parent families.)"

Cohen says assumptions ought not to be made about gender and there shouldn’t be any requirement for a genetic connection between the parent(s) and the child. The creativity and continued progression of how people choose to build their families cannot and should not be undermined as long as the families are built based on the informed consent of all parties and based on the clear pre-conception intention of all parties, she says.

In her presentation to family lawyers, Cohen will examine the interplay between how the federal law surrounding ARTs in Canada — namely the Assisted Human Reproduction Act and its regulations around the criminalization of compensated surrogacy and gamete donation — and provincial and territorial laws “don’t work together, leaving an already vulnerable population even more vulnerable."

Cohen will also offer examples of legislation from other jurisdictions, including the states of Illinois, California and Nevada.

She says while Canadian provinces and territories need to legislate parentage of children born through ARTs, they also need to consider legislating surrogacy in a more comprehensive manner.

Cohen will also discuss the need for donor registries to share health information while not further limiting the pool of donors.

“The federal government, provinces and territories must work together to determine how they can enhance the provision of ART services to the Canadian public and to ensure the security and stability of families built through these services,” she says.

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