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Provinces have moved to follow the changes, but the pace is slow. In the 1990s, legislatures across the country moved to abolish the notion of illegitimacy. From then on, a person’s status as a child of their parents did not depend on being born into wedlock. Likewise, the legal presumption that the husband of the mother is the father of the child has fallen out of favour, as it fails in the case of a married surrogate.

Alberta, for example, has a rule that allows an egg donor to be declared the mother of a child if the gestational carrier consents after birth. But in Sarah’s case, the egg donor was anonymous.

Mr. Gabruch said it is unlikely his clients would have won if Sarah had come from Mary’s own ovum, rather than a donor’s.

“I don’t know if the judge would have taken the step that the judge took,” he said. “There would have been a greater risk for us, in making the application, of being unsuccessful.”

Birth certificates are routinely changed in all provinces, to correct mistakes or reflect adoptions, and declarations of parentage are relatively common, but are usually about paternity. Declarations of non-maternity, such as this one, are very rare.

Saskatchewan has no precedents, but in in 2002, an Ontario judge declared that a gestational carrier was not the mother of a child, largely because the carrier gave her consent.

In 2000, a Manitoba judge ruled in the case of a woman who was a gestational carrier for her sister-in-law’s ovum, fertilized with her brother’s sperm. The judge refused to declare the sister-in-law to be the mother of the as yet unborn child, and declined to make an order about paternity to avoid the uncomfortable outcome of siblings being listed as parents. And in 2007, the Ontario Court of Appeal declared a child to have three parents under the law: her biological father and mother, and her mother’s same-sex partner, all of whom were actively involved in the child’s life.

National Post

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