Current legislation related to parentage and international surrogacy arrangements could stand to be clearer and more predictable, especially for 2SLGBTQI+ families. That’s the gist of a letter from the Family Law Section, the Sexual Orientation and Gender Identity Community Section, the Immigration Law Section, the Child and Youth Law Section, the Constitutional and Human Rights Section, the International Law Section and the Health Law Section of the Canadian Bar Association, commenting on a report from the Hague Experts’ Group on parentage and international surrogacy arrangements.
The Sections recommend that Canada agree with the proposition by the Experts’ Group to establish a Working Group “to explore possible provisions for a Convention and a Protocol,” and inform policy considerations related to any new instruments. The goal of the exercise would be to “increase predictability, certainty and continuity of legal parentage in international situations for all persons concerned, taking into account their human rights,” which in turn would lead to greater predictability and consistency in Canadian legislation.
In Canada, parentage is a provincial matter. Most provinces and territories address parentage in situations of assisted reproduction technology, generally by giving more weight to the intent of the parties on who will parent rather the genetic connection. “However,” the CBA letter reads, “an international instrument would guide all provincial and territorial legislation on parentage and create a more uniform legal environment.”
This is particularly important for members of the 2SLGBTQI+ community, “as the issues for queer and transgender parents are not always straightforward issues of biology or adoption.” The Sections note that polyamourous families and families with diverse parenting structures are becoming more common in Canada.
Noting that Canada is at the forefront of protecting the parentage of children raised in diverse family structures, the letter states that greater legislative certainty would help “vulnerable or marginalized populations navigate what is required to ensure that a child’s intended parents are recognized as such, and can reduce discrimination on the basis of gender or sexual orientation.”
Immigration implications
Canada generally adopts the principle of derivative citizenship for a person born to a parent who is a Canadian citizen. The issue is that “parent” is not defined in the Citizenship Act. Whether or not a parent must show a biological or genetic link with the child, and how much weight if any to give to the intention to parent, has been the subject of various interpretations and court rulings.
The formulation of a Convention and Protocol, the CBA letter concludes, “should offer greater predictability and certainty in rules relating to ‘parentage,’ and hopefully lead to clarification in the legislation.”