Law Times

Page 8 February 27, 2017 • Law Times www.lawtimesnews.com Surrogacy law goes backward, say lawyers BY JUDY VAN RHIJN For Law Times T he recent passing of the All Parents Are Equal Act in November 2016 represents an oppor- tunity lost for the development of surrogacy law in Ontario, say some lawyers. The bill removed the courts' progressive approach to enforcing surrogacy agree- ments, which surrogacy lawyers fear will leave the area open to exploitation. "There are good things in the bill dealing with gamete dona- tion, but, unfortunately, not for surrogacy," says Sara Cohen, of Fertility Law Canada, in To- ronto. "Surrogacy just came along for the ride on this one and it was the loser. The only benefit here for surrogates is that it costs people less for getting the par- entage side done." The act alters the accepted practice of obtaining a judicial declaration of parentage af- ter the birth of the child with a process where parties rely on a surrogacy agreement and in- dependent legal advice before conception, and an administra- tive process for registering pater- nity by consent after birth. Sur- prisingly, it also provides in s. 9 that the surrogacy agreement is legally unenforceable, but it then says that it may be used as evi- dence of the parties' intentions. "[The act] says we're going to listen to the agreement and rely on it for intent, making the agreement more important," says Nancy Lam, a surrogacy lawyer in Toronto. "Meanwhile, there's this bi- zarre section that says surrogacy agreements are not enforceable. No matter what you say in the agreement, it could always be overridden. This is a key issue. I believe as times progress and we rely on the act, more problems will become apparent and there will be challenges to it." Cohen says the new agree- ment isn't appropriate because, "in reality, you don't have a situa- tion where surrogates try to keep babies." "It does not happen frequent- ly in Canada," she says. "Unfortunately, it is more likely that parents will change their mind, but now the agree- ment is unenforceable against the intended parents, too. It's the wrong move." Prior to the legislation, Co- hen says, agreements relating to gestational surrogacy — where the birth parent has no bio- logical relationship to the child — were at least likely to be en- forceable in terms of intention to parent. That contrasted with traditional surrogacy agree- ments, where there is a biological connection, which, Cohen says, were unenforceable. Gestational surrogates accept donated em- bryos and are usually unrelated to the intended parents. Tra- ditional surrogates contribute their own eggs. They are often family members or close friends. Cohen estimates that about 95 per cent of surrogacy in Ontario is gestational. Kelly Jordan, a partner at Jordan Battista LLP in Toronto, says the legislators have moved the safeguards from the judicial declaration at the end of the pro- cess to the front end. "They think independent legal advice and the surrogacy agreement are enough of a safe- guard to register parentage with the surrogate's consent," she says. "The policy is for lawyers to safeguard the process rather than judicial declarations." Jordan refers to s. 6, which says that in the case of surro- gacy, the birth parent is not rec- ognized in law to be the parent if there is a "relinquishment of an entitlement to parentage by a surrogate under section 10, or to a declaration by a court to that effect under section 10 or 11." "It provides if everyone doesn't consent, they can apply to court for a declaration, but the checks and balances are less stringent than I wanted," Jordan says. "I have done many declara- tions and I have observed that the Superior Court judges who review the agreement took their role very seriously to prevent du- ress and fraud." Michelle Flowerday of Flow- erday Law in Toronto agrees. "I believe this will prove to be a mistake in some cases," she says. "It is in the best interests of children to have some judicial oversight when a child's legal parentage is at issue." Cohen is deeply concerned that it is left to the parties to confirm that they have met the requirements of the act and that the surrogate consents to relin- quishing the child. "We had a situation where judicial oversight stopped a lot of fraud in the traditional surro- gacy context, and we had grow- ing legitimacy in gestational surrogacy," she says. "One day we will look back on this with regret. How could we let court oversight of the agreement and preconception concerns go?" Another glaring problem for Cohen is that the bill gives a sur- rogate seven days to change her mind after birth and requires joint medical decision-making between the parents and the sur- rogate in the interim. "This is an anomaly that seems to come out of left field, based on a model more akin to adoption than third-party reproduction," she says. "This could prove nightmarish for hospitals and health-care pro- viders if the child requires medi- cal care, especially if the surro- gate is gone." Since the legislation came into force on Jan. 1, Cohen has been fielding phone calls from hospitals. "Hospitals have had lots of questions for me, trying to un- derstand the risks they're tak- ing," she says. "They have definitely been confused about who they should be listening to, whose names to put on the documents and any possible liability on them. The surrogate usually goes home the same day as the birth. Should the FOCUS ON Family Law/Trusts & Estates Kelly Jordan says in recent legislation in Ontario governing surrogacy, legislators moved safeguards from the judicial declaration at the end of the process to the front end. See Wait, page 12 FOCUS AnyWhere AnyTime AnyDevice DM Tools Cloud for child and spousal support calculations. Pay-per-use and annual subscription options available. www.divorcemate.com āċĉĀĀċćĆăċĀĊĂĆƫ40ċƫąĀĈƫđƫ/(!/Į %2+.!)0!ċ+) Essential Tools for Family Law Professionals Straightforward, easy-to-understand printout. Instant, secure access to all of your client files at home, at work, at court. Untitled-1 1 2016-11-03 9:18 AM

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