What’s a family, anyway? Ontario government to radically change family law

The Ontario government is fast-tracking a bill that, if passed, will fundamentally overhaul family law in Ontario. It is critical that we understand these changes and seize the narrow window of opportunity to share our concerns with our leaders before the legislation becomes law.

Bill 28, the Orwellian “All Families Are Equal Act”, removes the term “mother” and “father” from all Ontario law, to be replaced with “parent”. The bill also eliminates the basic assumption of Ontario law that a child has no more than two parents. It eradicates the traditional categories of natural or adoptive parents and removes all references to persons being the “natural parents” of a child and to persons being related “by blood”. The French version replaces uses of the term “parent de sang” (parent of blood) with “parent de naissance” (parent of birth).

The bill allows up to four people to enter a “pre-conception parentage agreement” (PCPA) to be recognized as a child’s parents at the time of the child’s birth. It also allows up to four “intended parents” to enter a “surrogacy agreement” with a surrogate who agrees to relinquish parentage after the child is seven days old. The bill separates biological from legal parentage in these and other ways.

Under the bill, a child can have up to four “parents” at birth where two, three, or four parties agree in writing to be parents to a child yet to be conceived.[

The bill requires the “birth parent” (the “person who gives birth to the child”, not necessarily the biological mother) to be a party to a PCPA and therefore a legal parent. (This is not the case with surrogacy agreements, as explained further in the next section of this article.) If the child is to be conceived “without the use of assisted reproduction” (i.e. naturally), the law also requires “the person who intends to be the biological father of the child” to be party to the PCPA. If assisted reproduction is used, the biological father need not be a party to the PCPA.

In a PCPA, the spouse of the “birth parent” also need not be a party to the agreement (and thus not a parent to the child) if he or she provides written confirmation before the child is conceived that he or she does not consent to be a parent of the child.

This means that a child at birth can have four legal parents, one of whom is the child’s birth mother (but not necessarily biological mother), plus three other adults of no familial relation to the birth mother. It is possible that not one of a child’s 4 “parents” under a PCPA will actually be the child’s biological parent, since outside donors of “reproductive material or an embryo” can be used. It is possible that the “birth parent’s spouse” is not a parent to the child, while up to 3 other persons are.

(Note that none of the two to four parents in a PCPA is considered an adoptive parent; adoption is a separate matter.)

Surrogacy agreements

A “surrogacy agreement” as defined by Bill 28 means a written agreement between a surrogate and one or more persons respecting a child to be conceived by assisted reproduction and carried and borne by the surrogate in which the surrogate agrees to not be a parent of the child and the other parties agree to be parents.

Unless the surrogacy agreement provides otherwise, during the first seven days after a child’s birth, the surrogate and up to four “intended parents” share the rights and responsibilities of parents. Any provision of the surrogacy agreement respecting parental rights and responsibilities is of no effect after this initial seven-day period.

There can be up to four “intended parents” signatory to a surrogacy agreement, and the surrogate cannot be among them (if she were, it would be a PCPA). However, the surrogate legally has a presumptive “entitlement to parentage” which she can relinquish by consent in writing only after the child is seven days old. Even if she agreed beforehand in a surrogacy agreement to relinquish entitlement to parentage, that agreement is not binding.

It is only after a “declaration of parentage” is received from a court that the parties to a surrogacy agreement can actually become the legal parents of “the child contemplated by the agreement”. Such a declaration is not to be made until the surrogate provides consent in writing to the intended parents that the child becomes the child of each intended parent and ceases to be the child of the surrogate. A court can waive the requirement for the surrogate’s consent, however, if the surrogate is deceased, cannot be located, or refuses to give consent.

Any party to a surrogacy agreement including the surrogate may apply to a court for a “declaration of parentage”. The court may grant the declaration that the applicant request or “any other declaration respecting parentage of a child born to the surrogate as the court sees fit.” When it comes to whom a court will declare to be a child’s legal parents, “a surrogacy agreement is unenforceable in law”, although it can be used in court as evidence of an intended parent’s intention to be a parent or a surrogate’s intention not to be a parent. In every case, the court’s “paramount consideration” in making a declaration of parentage must be “the best interests of the child”.

Surrogacy agreements as provided for in Bill 28 mean that a child can have (seven days after the child’s birth) up to four legal parents, none of whom is the child’s biological father or mother or birth mother.

Further separating biological and legal parentage

We have already seen how “pre-conception parentage agreements” and “surrogacy agreements” separate biological parentage from legal parentage. But Bill 28 separates natural and legal parentage in other ways too. (Note that we are not talking here about adoption—a legal mechanism traditionally intended to provide a child with parents in place of the child’s natural parents where the latter are deceased or are unable or unwilling to care for the child.)

Bill 28 provides that a person who provides “reproductive material or an embryo for use in assisted reproduction” shall not, simply by being a biological parent, be recognized in law as a parent of the child, unless “the provision of reproductive material or embryo was for his or her own reproductive use.”

The law also allows a man to father a child by natural means, but to agree in writing before conception to not be a legal parent of the child. The law calls a sexual act intended to conceive a child further to such an agreement “insemination by a sperm donor”.

The law provides no registry for recording a child’s natural father or mother. Children conceived by donors of “reproductive material or an embryo” or by “insemination by a sperm donor” may never learn who their natural parents are or in the latter case, who their natural father is.

The many ways the bill is bad for children

Bill 28 commodifies children – objects to be produced and possessed.

Children have an innate desire to know who their natural parents are and should not be deliberately deprived of that knowledge. Children need stability in the home. A divorce between a child’s natural parents can be disruptive enough and can cause great distress to the child, damage their trust, hurt their performance in school, and so on. What about fights between up to four “parents”, none of whom ever married any of the others?

How can any of this be considered to be “in the best interests” of children yet to be born? Is this the legal framework into which people should intentionally bring children?

The bill also denies the reality of sexual difference. It removes the terms “mother” and “father” from Ontario law completely, reflecting the government’s view that there is no difference between a mother and a father and that a child does not need both.

The bill also completely discounts the important link between marriage, or even a long-term committed relationship between two people, and the healthy upbringing of children.

Under this bill, a child’s four parents could be tied to each other by nothing but a common desire to be a co-parent of a child, who is perhaps conceived in a lab with “reproductive material” from anonymous donors. The bill has the Orwellian title All Families Are Equal Act, but how is a “parenting” contract between up to four unrelated parents a family?

Of course, many children lack a mother or a father because of death or abandonment. But it is another thing entirely to design a legal system that legitimizes and encourages deliberately bringing children into the world without a mother or a father or even a relationship between the child’s parents that is more than merely contractual. And even if we call a parenting agreement between four men or women a family, it is not equal to the natural family, nor the adoptive family.

The bill makes children likely objects of litigation

Children born into these new “family” arrangements are much more likely to be the objects of litigation before and after birth, and throughout their childhoods. One can imagine several litigation questions that could easily arise.

When a child is born, is that child “a child contemplated by” the pre-conception parentage agreement or surrogacy agreement? Was the PCPA or surrogacy agreement properly formed? Were the essential terms properly understood and agreed upon by all parties? Did any of the parties sign under duress or undue influence? Did any of the parties rescind the agreement before “a child contemplated by” the agreement was conceived?

What if the biological mother and biological father decide, after conceiving a child, that they want the child to be theirs alone, despite having signed a pre-conception parentage agreement with two other persons before the child was conceived? Such a change of mind could occur shortly after conception, birth, or years later when disputes with the other “parents” arise.

What do shared “parental rights and responsibilities” between four “parents” (related or unrelated to each other) look like in practice? What about four “intended parents” and a surrogate? How can custody be fairly arranged between four different parents, none of whom are necessarily married to or otherwise related to any of the others? What happens when one or more of the four wants out?

There will be some degree of uncertainty wherever a surrogacy agreement is used. Surrogacy agreements are not binding in law. A surrogate may refuse to consent in writing to relinquish entitlement to parentage.

Even if the surrogate does relinquish parentage after the child is born, it is not difficult to imagine litigation occurring thereafter, with a surrogate arguing that her consent to relinquish parentage is not legally binding because she was under undue influence, duress, or was not of sound mind. And what if the surrogate is also the egg donor (i.e. the biological and birth mother)? There is no rule against that.

Bill 28 being fast-tracked to avoid scrutiny

Bill 28 passed first reading on September 29th, second reading on October 3rd, and was considered by the Standing Committee on Social Policy on October 17-18. All that is left is for it to receive clause by clause consideration on October 24 and 25 before it goes back to the Legislature for third reading and final vote before it becomes law. The fundamental building block of society, the most basic social institution – the family – must not be so totally redefined by an omnibus bill that is rammed through in a month.

The bill is obviously being fast-tracked intentionally to avoid public scrutiny.

Take Action

We urge all Ontarians to contact their member of provincial parliament (MPP) to communicate your concerns immediately. Click here to see several EasyMail drafts, which we invite you to personalize and change as you like, and send to your MPP. And when you have done so, send a note to your friends and fellow church members, urging them to do the same. If you have an additional 10 minutes for this crucial issue, make a phone call to your MPP in a few days, asking if they have read your letter and asking them to do so before they vote. Find your MPP here.

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