Surrogacy in Canada: Critical Perspectives

Monday, July 23, 2018

On May 17th and 18th 2017 the University of Ottawa Faculty of Law hosted an SSHRC funded conference exploring feminist perspectives on surrogacy in Canada. Professors Alana Cattapan of the University of Saskatchewan, and Angela Cameron and Vanessa Gruben from the University of Ottawa hosted fifteen feminist scholars from Canada and abroad.

We are about to launch a book with Irwin Law based on this conference. Watch for Surrogacy in Canada: Critical Perspectives in Law and Policy in the fall of 2018.

The University of Ottawa Faculty of Law is home to a number of active and inspiring feminist student groups. The conference organisers were fortunate to have students from these organisations working with us at the conference. The post features the last of three interviews of conference presenters by student conference participants. These interviews highlight participant's ideas, research and writing on surrogacy in Canada and abroad.


Interview 3:


Towards Ethical Surrogacy Practices: A Conversation with Christine Overall

Stephanie Tadeo

           
     Christine Overall has long been one of the leading feminist philosophers in Canada. A Professor Emerita and University Research Chair at Queen’s University in Kingston, Ontario, she also writes in various areas including applied ethics, philosophy of religion, and philosophy of education. Currently, some of her research centers on the need for a publicly-regulated system of surrogacy in Canada.

            During the workshop on surrogacy in Canada hosted by the University of Ottawa Faculty of Law in May 2017, I had the opportunity to speak with Overall about her concerns about surrogacy practices. She was initially opposed to the entire practice of surrogacy. This opposition was informed by moral problems she identified in surrogacy, including the exploitation women face as surrogates and the potential harm to children born from surrogacy practices. Overall provided the recent example of Melissa Cook, a woman in California who lost her petition to be declared the legal mother of the triplets to whom she had given birth. Cook sought to retain custody of the babies when her relationship with the commissioning father became contentious. Part of what was contentious was the fact that C.M., the commissioning father, specifically requested the implantation of three male embryos, and then made many statements saying he could not care for them all. Upon learning Cook was to have triplets, he allegedly asked her several times to abort one fetus (a procedure called selective reduction), a process that Cook opposed. The triplets were born prematurely in February 2016 and kept in intensive care until they were released to C.M. in April 2016. A federal judge eventually dismissed Cook’s case, giving full parental rights to C.M.

            For Overall, the Cook case provides an important example for understanding the complexities of human relationships and interactions within surrogacy practices. In the Cook case, for example, it is problematic that the minute the triplets were born, they were taken from Cook, who never had the opportunity to see them. According to Overall, the idea that providing a gamete (sperm, in this case) necessarily makes someone a parent is unjustified, and ignores the moral responsibility that women have for the child(ren) they carry and deliver. 

Over time, Overall has come to accept that surrogacy is here to stay. Now, she focuses (and urges others to focus as well) on how we can govern the practice of surrogacy with an ethics oriented to protecting all parties involved. One recommendation she proposes is to establish a minimal competency standard for commissioning parents (sometimes called intended parents), similar to that which is used in adoption procedures. She considers surrogacy to be a form of “pre-conceptual adoption”: the fetus shares a material relationship with the gestational mother, but it doesn’t share one with the commissioners. Therefore, before responsibility for and authority over a child born of surrogacy can be transferred, commissioners must be able to meet a minimal competency standard.

In short, Overall continues to lead the way in terms of scholarship on the ethics of surrogacy.  She brings to the surface important ethical questions we should be asking ourselves as we move forward with ever-changing forms of conception, parenthood and family. She demonstrates that, as we continue to accept and engage in new modes of reproduction, we need to confront tough questions about how to protect the rights and interests of all parties affected by surrogacy practices.

Indigenous Famous Six Celebration

Wednesday, April 11, 2018



Come and celebrate the endurance of the Indigenous Famous Six and the decades of work they have done to address sex discrimination in the Indian Act. Please find attached a poster in two formats.  




We Are Egg Donors

Thursday, April 5, 2018




We Are Egg Donors Co-Founder Claire Burns to give raucous performance lecture, EGGDONORAMA, at Storefront Theatre’s Feminist Fuck It Festival
 
In Canada, the fertility industry currently presents egg donors with a veritable “eggdonorama” of experiences to “choose” from. With legalities around donation murky at best and the wide variance of standards of care from fertility clinic to clinic, it really can be a crapshoot whether or not an egg donor gets treated as a person, not a product.

Actor, playwright, Egg Donor and Advocate, Claire Burns, takes the stage with the insightful, castigating and loud mouthed performance lecture, Eggdonorama, at the Storefront Theatre’s Feminist Fuck It Festival Sunday April 15th at noon.

Claire Burns is a nationally renowned egg donor advocate. Her current work focuses on initiatives that prioritize the short and long term health of egg donors. Claire’s play Hatched (2012), inspired by her experience as an egg donor,  led to the co-founding of We Are Egg Donors (WAED) in 2013.

WAED provides an honest platform for egg donors around the world to connect, proving that there is no "one size fits all" story for all of us. Because there are zero long-term studies on the health effects of egg donation, we partner with researchers and nonprofits like Our Bodies, Ourselves to advocate for initiatives that value donor health. We Are Egg Donors has been featured in The Atlantic, the New York Times, Globe and Mail, VICE and Chatelaine.

Burns has been an invited speaker at the Canadian Institute of Health Research Donor Conception Conference (2013), Canadian Fertility and Andrology Society’s Annual Meeting (2015), Workshop on Proposed AHR Regulations (Ottawa 2016) and Health Canada’s Best Brains Exchange: Path Forward for the Assisted Human Reproduction Act (2018).

With the current absence of oversight and data collection within the fertility industry, standard of care within clinics can vary wildly and the long term effects of donation are still unknown. It’s time for Canadians to wake up to the fact that without data and research egg donation is human experimentation with no possibility of informed consent. 

      Eggdonorama: A performance lecture about egg donation in Canada
 April 15, 12pm Feminist Fuck It Festival, 360 Geary Avenue
Tickets available at www.eggdonorama.brownpapertickets.com
For more information, to schedule an interview, or to receive a press pass to this event please contact
Claire Burns at claireburns49@gmail.com





International Day on the Elimination of Racism

Wednesday, March 21, 2018


“You don't acknowledge an injustice and then refuse to do anything about it”:

In Conversation with El Jones Against the Pending Deportation
of Former Child Refugee Abdoul Abdi

Overview: The following is a transcript between activist, scholar and poet, El Jones, and students of CRIM 4133: International and Comparative Criminal Justice, St. Thomas University, Department of Criminology and Criminal Justice instructed by Professor Josephine L. Savarese.

El Jones phoned in from Antigonish, Nova Scotia where she was about to deliver a lecture.   The class proceeded through a questions and answer format. The students were writing out cards for Abdoul during the phone call. El could see their work through Skype.

The Questions and Answers

Class:

I don't know a whole lot about you, El. I know you're a poet and an activist. Is it possible to learn a little bit more about your background?

El Jones:

In terms of the activist part, I do a lot of work with prison activism. In fact, I'm going to have to let you go in about 10 minutes. I'm sitting outside a building at St FX where  I'm about to go lecture.

I do a lot of work with people who are incarcerated, but from a community perspective, not sanctioned work by the prison system, work that’s outside of that. We have a radio show that we offer in the provincial prison. [Note: Black Power Hour broadcasts once a week out of CKDU, at Dalhousie University in Halifax. The show's goal is to empower people of colour, but specifically those inside Nova Scotia jails, where Black and Indigenous people are vastly overrepresented.]

We do a lot of community support. That’s how Abdoul knew my name, for example, before I connected with him. Abdoul used to listen to our radio show when he was on remand provincially. I am also involved in general activism work, community advocacy, stuff like that.

Class:

Can you tell us why you’re involved in the case?


El Jones:

There’s actually a bit of historical interaction. Do you remember the case of Ashley Smith?

Ashley Smith was a young woman who died inside of a Grand Valley institution ten years ago last year. She had a lot of mental health problems. She was initially imprisoned as a youth for throwing apples at a probation officer and then while inside youth prison she just kept racking up these small charges, so they just essentially kept keeping her in prison. Ashley Smith’s nephew, Jordan Ward, is the person that connects me to Abdoul’s case.

Jordan is himself also doing time. I don’t think he minds if I say this. He has some addiction struggles. In fact, it was quite shocking when he got incarcerated. He had robbed a pharmacy with a pen or something, which they called a weapon. They ended up giving him a federal sentence even though he had gone to rehab, even though he was attending school and holding a job.

He is the person that reaches out and basically says: “You have to do something for Abdoul”. They are doing time together and Abdoul’s sentence is winding down.  Abdoul has been alerted that he is under deportation orders.  Jordan very much felt for [Abdoul’s distress]. He reached out to his mother and to me and asked us to do something in about November 2017.

I connected with Abdoul from there. Jordan had to put him on the phone while he was making calls. In December, it just happens that I heard from Abdoul. We held a meeting at the Halifax Refugee Clinic with Ben Perryman, who is his lawyer, and Emma Halpern who is now with the Elizabeth Fry Society.

After that meeting, Julie Chamagne, Halifax Refugee Clinic, says: “Ahmed Hussen, who is the Minister of Immigration and Citizenship, gave a TED Talk where he actually acknowledged his experience as a Somali refugee claimant”. I get home from that event on Friday and I'm attending this event called the National Black Summit on Monday. I look at the schedule and Ahmed Hussen is on the schedule. I've literally just had a conversation about him. Desmond Cole, a journalist in Toronto, who had previously done a story on Abdoul and had been on the radio show, and I decided to confront the Minister at the National Black Summit. That was the first set of public actions. That was at the beginning of December 2017.

Class:
When asked about Abdoul’s family relationships. El responded as follows:

El Jones:
I can't speak for Abdoul, but having spoken to him, I know that something he'd like to prioritize, but it's been difficult.

And of course, this is part of all of these systems, right? He's taken from his family and placed into foster care. Him and his sister remain close, but they are separated in homes at many points.

In many ways they have to fight to maintain that closeness. Fatouma, his sister, told me that they used to run away to see each other. One of the contacts Abdoul had with the police is stealing a car from a family when he was eleven and driving around the city looking for his sister.

Fatouma, his sister, has also told me that the reason why they don't speak their language is because when they were first put into group homes, they were punished for speaking Somali. So they were put on time-out if they were speaking with each other, because the view was “oh, you guys are probably plotting to escape”. They would be punished for speaking Somali.

That relationship has already been difficult enough. Just the brother and sister keeping a relationship, and of course they were taken from the aunt who identifies as his mother. That is also a challenging relationship. You see in this next generation of the kids those kids who are losing their parents through incarceration or through contact with child protection services. You see this really cyclical nature that once people get involved in these systems, it goes generation to generation to generation, You see this repeatedly with kids who are in contact with the youth system or with the foster care system or people who are in contact with incarceration, that it goes into the next generation.

Particularly, once you have a criminal record, they'll show up at the hospital, child protection will show up to either monitor you or surveil over you or take your child. You're seeing that in Abdoul’s case as well.

Class:

Abdoul is really Canadian. He spent the majority of his life here. The time that he spent in Somalia - he wasn't old enough to remember it in the first place. As a Canadian citizen trying to adapt to that culture and that type of society [he will struggle];that came up as a large point for us in class.

El Jones:
Yeah, it’s quite complex. Abdoul has never lived in Somalia. He was born in Saudi Arabia. His mother was Somali; I don't think his father is.

There's quite a bit of confusion about his origins. It matters because there's a clan system in Somalia. It’s:  1) he doesn’t speak the language and 2) he is not a practicing Muslim and has things like tattoos that physically identify you as not a practicing Muslim.

He is visibly North American, which is a huge problem. He doesn't have a clan relationship because that runs through the father. It is also a problem in Saudi Arabia. The government has said that they might try to deport Abdoul to Saudi Arabia. However, you can live in Saudi Arabia for generations and not be a Saudi citizen. Your father has to be a Saudi citizen. It’s unclear if he even has citizenship in Saudi Arabia, but he also was not born in Somalia, so he may be stateless. Abdoul has none of the very necessary clan ties and stuff. Even were he to speak the language, you need those ties as well.

This is actually one of the human rights issues in the case. I know that Ben Perryman [Abdoul’s lawyer] has been pursuing that issue in terms of finding out about that system because it is key for safety, for jobs, for being able to access resources in Somalia. Abdoul simply doesn't have that.

Class:
Essentially it would be subjecting him to a very insecure and unsafe life going into those circumstances?


El Jones:

Even in the best circumstances, he has no family there, no language, none of the culture. And then on top of that, people know that people are deportees and they know that deportation happens for a reason. It's very dangerous also for those deportees. There are cases of people being sort of lined up on the runway and shot because people argue “we don't want you here, you know?”

People know that these are the kind of people that our countries, “our countries”, I'm putting that in quotes, didn't want. That's very precarious as well. Somalia is on our list as one of the most dangerous countries. They get around that is by saying that only certain parts of Somalia are too dangerous. They deport into certain areas. In fact, the border agents aren't able to even go into Somalia. They actually drop them off at the border and pay human traffickers to take them across.

Class:

That's what I was going to say. Certain parts– it’s only certain parts that are unsafe, yet Canada won't even go into Somalia as a whole.

El Jones:

Of course, our Minister of Immigration is a refugee claimant from Somalia. He usually refers to himself as a refugee, but he wasn't a government sponsored refugee. He was a refugee claimant, meaning that he arrived so called “illegally”. I don't ascribe to these ideas of people being illegal. But by his own system, Canada’s immigration system, he came illegally to Canada. He made a refugee claim based on “a well-founded fear of persecution”, requirement under the law. His life was in danger and that claim was accepted by Canada.

Our own Minister of Immigration, Citizenship, and Refugees claims Canadian status based on it being too dangerous for him to go to Somalia. And of course, the Minister had family there, right? He has much more support than Abdoul would have in Somalia. He spoke Somali, he was from Somalia, whereas Abdoul is not. That's one of coincidences of this system: that we literally have an Immigration Minister who himself is a claimant based on the dangers of Somalia.

It is Public Safety Minister Ralph Goodale that is mostly in charge of this, overseeing the system where a deportation could happen to a country he can’t  go to.

Class:

What's somethings you think are really important to be shared on the news and social media.?

El Jones:

I think the most important piece– the most strategic pieces are around the foster care, right? Because [this factor] makes his case unique.

Canada deports people all the time. You only have to have six months of incarceration before you're eligible for deportation. In Abdoul’s case, the state was supposed to get him citizenship. When Ben Perryman, the lawyer, does a freedom of information request, it turns out that there's a policy gap. They don't have any policy on seeking citizenship on behalf of children in case and they don't anticipate closing that until 2019.

These kids are essentially in limbo. The government is acknowledging that there's a failure– they will all say that. Trudeau said that after Fatouma confronted him at a Town Hall Meeting. When Abdoul’s sister got up in front of Trudeau at the Town Hall Meeting in early January and said, “Why are you deporting my brother? Would you deport your own son?” Trudeau says the province failed Abdoul.

Minister Hussen said that recently at a Town Hall he held in Halifax. They all acknowledge it, but at the same time they are sort of shrugging their shoulders and saying, “We failed, but…” Abdul continues to be punished for a failure that isn't his own failure; it was a failure of the system.  

These kids are taken into care to, so called, “protect” them, but they've been denied the protection of the most basic rights. If you don't have citizenship, you're being denied, as Ben would put it, the right to even have rights.

It’s difficult because, of course, he did commit a violent crime. So, for a lot of people, that's: well, he's a criminal, so ship him out or let him go. The point we always make with that is Aboul did his time. He took responsibility, he was accountable, he's paid the price and had everything happen as it should have in terms of his citizenship. He would now be rebuilding his life like any other person who serves time, because many Canadian citizens, also commit crimes, right?

This kind of way of being declared a public danger was initially developed for things like murderers, drive-by shootings, gang activity and is now being applied to small things. They’re using quite a broad brush to paint people as public dangers, which then allows them to go through this whole system.

The other point that Ben Perryman is making is the lack of process. Every time Abdoul’s case gets heard in federal court, he's winning, but CBSA doesn't follow those processes. All they have to do is say that you committed a crime and you're not a citizen and that's basically an automatic triggering of these processes and that's how you lose your admissibility. But Ben's pointing out there's all these other issues of the Charter, the rights of minors. There are issues in international law which involves, under the UN, for example, an obligation to provide special protection to non-citizen children and care. These issues aren't even being heard under the border services proceedings. They literally like, “OK, so did you commit a violent crime? Yes. Are you a citizen? No. OK, so deport”. There's very serious human rights issues that are being addressed here that the processes that are in place essentially don't address. One of the things I'm pushing for is to have this case heard in court where the issues can be given a full hearing by an actual judge and not this very automatic process that doesn't take any of these things into account.

The other thing is, of course, Abdoul has a job now and the admissibility hearing will strip him of that ability to hold his job, which is also a condition in his parole. His job is actually working with kids in care and working with policy makers, in particular, to address what we call crossover, which is the phenomenon of the kids moving between the youth justice– the foster care system and the criminal justice system. Essentially they're saying, “there is this failure of the system, we didn't address these problems. Abdoul's in a job where he's in a position to address this and they want to strip him of that job”.

When does Abdoul get a chance? He's not given a chance as a child; he’s sent to thirty-one homes, he only has a great six education. He's failed in all these ways. Nobody gives him therapy or mental health care. The failures go on and on and now having sent him to prison, having done his time, we can't even allow him the chance to just hold the job, reconnect to his child and live his life. We have to continue punishing him. He's being punished, not even double, he gets prison and deportation and then this sort of triple punishment of losing his healthcare and losing his status and losing his rights.

Class:
It’s unfortunate that the language of the law is so broad and then specific and essentially like when you said: “have you committed a crime, are you a citizen, OK, deported,” Like it doesn't take in considerations and it doesn't necessarily have to be. That’s what’s sad about it. It's like so broad and generalized that, I don't know, It's hard, like it's hard when people have these situations and it's often not heard or taken into consideration.

El Jones:

I guess the last thing I'll say is, Minister Hussen did acknowledge and use the words “anti-blackness” to describe what has happened, because we know black kids are disproportionately taken into care. We know black kids are failed in care so they don't receive culturally competent care. They’re criminalized within care. For example, the police might be called if you roll your eyes at a worker, so they’re criminalized. Within that, they experience very high rates of crossover into the criminal justice system and then of course become criminalized in the immigration system as well. And so he uses this word anti-black racism to accurately describe this. This is a very representative case of the way black kids are failed by Canada, but then essentially he's like, but we're not doing anything.

So, this is one of the things we're saying -  you can't say it's anti-black racism and then stand back. You don't acknowledge an injustice and then refuse to do anything about it. If you can name this as anti- black racism, obviously then, you need to stop what you're doing. That's been one of the infuriating things. This word is being thrown around: anti-black racism, which Abdoul absolutely exemplifies, but then people have basically been saying, “oh well, it's anti- black racism”. As if saying it means anything.

Class:
What are the chances that he won't be deported,  in your personal opinion?

El Jones:
I think they are good. My reading of Minister Hussen’s appearance in the Town Hall, was that he more or less promised us, without promising, he more or less said: When I have the chance to do a compassionate intervention. I, you know, have that opportunity. But uh, that's– the average time for those appeals is 2-3 years, and the problem is that in that time you completely without status, so you cannot work, you cannot access healthcare, you’re not eligible for school funding. Like all of these things prevent you from having any kind of status, so I don't actually believe he'll get deported. I have quite a lot of faith that he won't. It's just been too serious of a case, but the issue is why we have to wait for things to hit that critical point when it's a clear human rights issue. Why do we have to make him suffer for three years when there's clear issues of human rights involved?

El Jones:

I will say that we encourage people [to make changes]. The tweeting, the writing letters, it does help; it keeps the pressure on.  Anything to keep this on the Minister's radar so they know that Canadians are serious about this.

Thank you for really caring about this issue. It means a lot to Abdoul. He follows everything online as well. So, um, he sees when people tweet about him, he sees what people post about him. Um, and when people aren't, he also sees that. So, to just keep up that kind of publicity and that support for Abdoul is really important. It is very, very difficult for him. We encourage people to visibly express support so that he knows what's going on.


Class:

These are the letters that we're writing: “There is a warm meal and a hug for you in Fredericton, Abdoul”. “No justice, no peace”. “We the people are behind you”. “We are with you”. “Be Strong”. “Hang in there”. “Thinking about you and wishing you the best”.

El Jones

These are wonderful. He will really appreciate that. One of the stories he tells me, one of the first times I speak to him after he comes out of prison, he talks about being held in immigration detention and he's in a cell and the cell is just covered in the names and dates of people, we'll say like: 2006 January 16th, and a name and he realizes that it's, the names of people who have been deported. To Abdoul, they read as his death date and he just imagined his name going on this wall. He thinks of himself as being in a tomb or in his own grave because he sees being deported as a state beyond death.

He believes he won't be remembered when this happens, that he'll fall off the face of the earth. He asked me if I'd even remember he existed once he's deported. This is one reason why we feel acknowledging him and recognizing him is so important so that he knows that he is a human being, that he has value and people recognize him.

Thank you so much.

Everyone, in response:

Thank you so much!!


Submitted by Professor Josephine L. Savarese

Josephine L. Savarese is an Associate Professor in the Department of Criminology and Criminal Justice at St Thomas University in Fredericton, New Brunswick. Her most recent publication is on activism after deaths in custody.  It is: “Leaving a Light on for Ash: Explorations into the Activist Mothering of Coralee Smith (Mother of Ashley Smith, 1988-2007),” Journal of the Motherhood Initiative for Research & Community Involvement 8, no.  1/2 (2017): 99.

The interview with El Jones was transcribed by Joshua Sallos, a student at St. Thomas University.



Update From El Jones: 19 March 2018

 Abdoul returns to court on March 21st, which is also the International Day for the Elimination of Racial Discrimination. This day is recognized in remembrance of the Sharpeville Massacre in South Africa, where Black South Africans were protesting the pass laws.

Leading up to March 21st, challenge Canada on how anti-Black racism is active in Abdoul's case, perpetuated through the child welfare system, the youth justice system, the criminal justice system, and the immigration system.

We can draw a direct continuum between our comrades in South Africa and Abdoul today. Just as Black South Africans were treated as non-citizens in their own country, Abdoul, despite being raised in Canada and considering himself Canadian, is treated by our government as though he doesn't belong here. Black South Africans were removed from their homes just as Abdoul was taken away from his home.

Paperwork and law was used to control, criminalize and surveil Black South Africans, just as Abdoul today is a victim of process, of paperwork undone, and is subject to check-in and surveillance. The laws may not be as explicit, but the anti-Black racism, the stripping of rights, the control of movement are all being experienced today by Abdoul in Canada - a Canada that specifically targets Black bodies as a danger, as not really Canadian, and as a contamination upon the "good" whiteness of Canada.

Ask Canada to uphold our duties under international law to non-citizen children in care. Recognize that eliminating racism means that Abdoul cannot be disposable, and that continuing to victimize and abuse him through the courts marks a complete failure of justice and human rights. To strip Abdoul of his residency on the 21st is a terrible irony, and puts into stark relief the difference between Canada's claims to be a beacon of human rights, and the realities for Black people living here. #FreeAbdoulAbdi #StoptheDeportationNow @RalphGoodale @AhmedHussen




Reflections on the 2018 Kawaskimhon National Aboriginal Moot

Thursday, March 15, 2018


Breanne Martin, Kelly Duquette, Ryan Stiles
Kyle Brooks, Jamie Lickers, Maria Lucas


uOttawa Faculty of Law students Maria Lucas, Breanne Martin, Ryan Stiles, Kyle Brooks and Kelly Duquette all participated in the 2018 Kawaskimhon moot- a consensus-based descision-making exercise.

Huge thanks to coaches Graham Ragan and Jamie Lickers who supported the team.

Reflections on the 2018 Kawaskimhon National Aboriginal Moot

Maria Lucas
JD Candidate uOttawa Faculty of  Law


On March 2nd, 3rd, and 4th 2018, I had the opportunity to participate in the Kawaskimhon National Aboriginal Moot. Kawaskimhon is a Cree word roughly translated to “speaking with knowledge”. The moot is a consensus-based, non-adversarial moot that incorporates Indigenous legal traditions alongside federal, provincial, and international law. This year’s topic of negotiation was the protection, control, and trade of Indigenous cultural heritage. Parties to the negotiation had to develop a legal framework that would ensure the protection and control of Indigenous cultural heritage at both a local and national level. My team represented the Indigenous Bar Association as an intervenor in the negotiation. Our role was to ensure that Indigenous legal traditions were recognized and permitted to operate within or alongside the legal framework the parties developed.

One of the most valuable lessons I took from this experience is that inherent in negotiation is compromise. If parties walk away from the negotiation table feeling like they lost something to the other, then it was a successful negotiation. In this way, I thought that the Kawaskimhon National Aboriginal Moot accurately reflected what can occur in Indigenous-Canadian negotiations with respect to Indigenous land claims, modern treaties, and self-government agreements. However, while compromise may be inherent in these negotiations, I do not think that the compromises should be of such a degree that they detract from Indigenous people’s inherent sovereignty and laws. Indigenous people’s sovereignty and laws must always inform Indigenous-Canadian relations if the nation-to-nation relationship is to be restored in Canada.

New blog from Prof. Joanne St. Lewis

uOttawa law`s Prof. Joanne St. Lewis recently published this op-ed on the role of race and racism in current debates on the federal budget.

Surrogacy in Canada: Critical Perspectives in Law and Policy II

Monday, February 12, 2018

On May 17th and 18th 2017 the University of Ottawa Faculty of Law hosted an SSHRC funded conference exploring feminist perspectives on surrogacy in Canada. Professors Alana Cattapan of the University of Saskatchewan, and Angela Cameron and Vanessa Gruben from the University of Ottawa hosted fifteen feminist scholars from Canada and abroad.

The University of Ottawa Faculty of Law is home to a number of active and inspiring feminist student groups. The conference organisers were fortunate to have students from these organisations working with us at the conference. The next few blog posts will feature interviews of conference presenters by student conference participants. These interviews highlight participant's ideas, research and writing on surrogacy in Canada and abroad.


Interview 2:

Surrogacy in Canada: Emma Ryman and the Fiduciary Duty
Tori Paton

Despite three years of law school in two different countries, I know little about fiduciary duties, other than that they are challenging to research and that they seem to be a relatively flexible concept.  A fiduciary duty, if I understand correctly, is the duty that one has to act in the best interest of another, in cases where the first person exercises power on behalf of the second. A classic example of a fiduciary duty is a board member of a corporation, in which the board member has an obligation to the shareholders to act in the best interests of the corporation (and not in their own interest). Other examples include trustee arrangements, or the delegation of power of attorney.
                                                                                                                      
Emma Ryman is an expert on the role of the fiduciary duty on physician’s fiduciary obligations in the context of surrogacy. I met her while volunteering for a workshop on Surrogacy in Canada held at the University of Ottawa in May 2017. The workshop brought together scholars in the fields of law, philosophy, medicine, and bioethics, all who have worked in different areas of surrogacy throughout their academic careers. Ryman, a doctoral candidate in the Philosophy Department at Western University, was one of these scholars, and her research on the fiduciary duty immediately piqued my interest. She takes a normative approach to the study of the fiduciary duty in patient-physician relationships in the case of surrogacy, investigating not whether the relationship between doctors and surrogates is recognized as being fiduciary in the law, but whether it should be.

As someone who focuses on family and immigration law (where I rarely run into the legal issue of fiduciary duties), I had never thought about the fact that a fiduciary duty could exist between a doctor and a patient. I always thought of fiduciary duties in the context of a mortgage broker or a trustee.  As Ryman explained, the physician-patient relationship is clearly a fiduciary one, however, as it is a relationship in which patients trust their doctor to make some decisions on their behalf, and assume that their doctor will make decisions in their best interest (see for example, McInerney v MacDonald).

For the case of surrogacy, it is important to stress that people who have fiduciary duties have a responsibility to avoid conflicts of interest. Physicians need to act in their patients’ best interests and should not be in a position that might tempt them to advance their own. But conflicts of interest are prevalent in surrogacy arrangements. Surrogates are pregnant women, whose health is impacted by their pregnancy in the same ways as other women. At the same time, there are other people who have a vested interest in that pregnancy. In India (which, until recently, had a very significant market in international surrogacy) surrogates typically lived away from their families in hostels, with strict regulation of their living conditions, diet, and exercise. While some physicians were involved in the medical surveillance of surrogates in India, care was often provided to advance the interests of the intended parents, the surrogacy agency, and the physician, as well as the child to be born, with little attention paid to the women’s health and well-being.

Although the case of surrogacy in North America is quite different (as described by three women who spoke at the workshop about their experiences as surrogates), there is a similar desire among intended parents to control the actions of the women carrying their child, and their doctors and clinics and lawyers play important roles in those arrangements. Although her explanation of these conflicts of interest were enough to convince me that physicians owe surrogates a fiduciary duty, she substantiated her position by referring to the work of another workshop attendee, Pamela White. White identified the concern that in the context of fertility clinics, intended parents’ interests may be prioritized over surrogates, and the surrogate can easily be seen as the ‘treatment to the couple’s infertility,’ rather than a patient herself. 

Ryman suggested a number of ways that the situation might be improved. One way would be to implement payment structures where surrogates are given money upfront by intended parents to pay for their own medical expenses. Other ways of ensuring surrogates’ health interests are prioritized include requiring that parties receive independent medical care for all parties, and giving freedom to doctors to refuse to enforce the terms of surrogacy contracts when doing so is in surrogates’ best medical interests. Finally, Ryman suggests that single embryo transfer should be standard practice so doctors won’t be tempted to increase success rates by transferring multiple embryos (a danger for surrogates since it often leads to higher risk, multiple pregnancies).

Some of Ryman’s recommendations will be difficult to achieve, and given legislative and regulatory challenges in this field, legislation may never be able to address all of these concerns. And while it is already widely recognized that doctors have fiduciary duties to their patients, ensuring that doctors act on this duty in the context of surrogacy is a different story. At the same time, reforms that prioritizes surrogates’ agency, health, and safety in surrogacy agreements is likely to create positive changes for surrogates. With the work of scholars like Ryman, however, we may have new arguments and tools to continue to work toward change.

Surrogacy in Canada: Critical Perspectives in Law and Policy

Tuesday, February 6, 2018

On May 17th and 18th 2017 the University of Ottawa Faculty of Law hosted an SSHRC funded conference exploring feminist perspectives on surrogacy in Canada. Professors Alana Cattapan of the University of Saskatchewan, and Angela Cameron and Vanessa Gruben from the University of Ottawa hosted fifteen feminist scholars from Canada and abroad.

The University of Ottawa Faculty of Law is home to a number of active and inspiring feminist student groups. The conference organisers were fortunate to have students from these organisations working with us at the conference. The next few blog posts will feature interviews of conference presenters by student conference participants. These interviews highlight participant's ideas, research and writing on surrogacy in Canada and abroad.


Interview 1:

Melanie Snow

Surrogacy in Canada: A Commentary on Regulation with Jocelyn Downie

Although the Assisted Human Reproduction Act has existed since 2004, the Canadian regulatory landscape in relation to surrogacy, remains somewhere between sparse and non-existent. At the workshop on surrogacy in Canada hosted by the University of Ottawa’s Faculty of Law, an interdisciplinary group of Canadian, feminist academics presented a wide variety of perspectives on the issue, their diverging opinions suggesting why this area has remained unregulated for so long. While the workshop was successful, it underlined the fact that much work was left to be done in areas ranging from scientific and social science research to public awareness and acceptance of the practice.

According to Dr. Jocelyn Downie, a professor in both the faculties of Law and Medicine at Dalhousie University, regulating surrogacy is the key ingredient needed to achieve these goals. Downie (whose many areas of specialization include health law and assisted reproduction) called out Health Canada for their failure to regulate in this important field.

When asked whether the lack of movement by Health Canada was due to an absence of empirical data in the field that might support change, Downie specifically stated that the lack of evidence was tied to the lack of regulations: “They [Health Canada] haven’t put in place the systems for enabling us to get that evidence so they need to fully implement the Act and [increase] our capacity to generate the evidence.”

Her insistence comes in part from the fact that the wait for regulations to bring certain parts of the Act into force is ongoing, more than ten years after the Act first passed. She emphasized not only that the delay in making the regulations has been long, but also that there is “no good reason” for it. Downie emphasized that that Health Canada could proceed immediately, stating: “I think they should put out draft regulations, they should do a consultation, they should put them in place and then enforce them.”

The absence of these regulations is particularly difficult as the regulations play a key role in the potential effective enforcement of the law. Under the Act, surrogates can be reimbursed for receipted expenditures, but what can count as a legitimate expense is left to the regulation-to-come. The Act aims to avoid a commercial system, premised instead, following Downie, on the idea that “you shouldn’t be out of pocket but you shouldn’t be making money.” When asked what regulations she would put in place if she was able to do so tomorrow, Downie asserted that she would start by providing “Very clear guidance on what you can include as a receipted expenditure,” as well as processes for submitting receipts and oversight.

In emphasizing this connection Downie underlined the important role the criminal law plays in public awareness surrounding surrogacy.

“It’s an indirect effect of having the regulations. […] Part of why we have the silence around surrogacy to my mind is because it has not been clear to people, or it’s been suggested that the law is unclear. […] So, there is confusion around what’s legal and not legal, in relation to surrogacy, and there have been practices going on that I think are illegal but it’s not being enforced. So, there is this spectre of illegality in the context of criminal law that means that I think people feel most comfortable in the shadows, and I think that’s unhealthy. But until we get the regulations in place and the enforcement of the regulations and the law, that is what’s going to continue to keep it out of public discourse.”


The very clear message to Health Canada then, from this highly accomplished Canadian scholar would seem to be: regulation and enforcement; sooner rather than later.  

The Case Against Presumed Equal Shared Parenting

Wednesday, July 5, 2017

The Case Against Presumed Equal Shared Parenting
Kate Harveston

Recently, an article was published on National Post in which the author posits that Conservative Party of Canada leader Andrew Scheer should make supporting presumed equal shared parenting (ESP) a policy position.
Presumed equal shared parenting is a hot issue right now all over the world, as many believe that men are not receiving equal access to their children after a divorce. A battle over custody can quickly turn dirty — separating when there are children involved is never easy. Some see the solution to this problem as implementing presumed equal shared parenting. In other words, both the mother and the father would automatically get custody.
While an appropriate choice in some situations, ESP might not always represent the best interest of both parties in all scenarios. Let’s jump into why I don’t agree with this plan.

What is Equal Shared Parenting?
When a couple with children divorce, they have to consider who will retain custody of the children. In some situations, both parents acknowledge custody should split in a way so both parties can have a say in the child’s upbringing. However, some situations call for a serious debate.

In most cases, the mother gains custody of the children. This outdated notion views women as the mother and the father as the breadwinner of the family. In other words, the mother retains custody of the children because the court views her as already raising the children anyway, while the father works.

Supporters of equal shared parenting, like Barbara Kay, argue this idea as outdated and incorrect. It is not fair to assume the father as absent in the child’s life, and therefore, they should receive the same rights to custody as the mother. It also considers fathers may stay at home while mothers head off to work, or that both the mother and the father share the responsibilities of maintaining a home and raising a family.

Equal shared parenting aims to help both children and fathers during a separation. By preventing the mother from assuming complete custody of the children, children of divorce can still grow up with a father in their lives, and fathers can remain a part of raising their kids. This can improve the happiness and mental health benefits of both parties.

While I recognize the truth in this, equal shared parenting presents a number of other problems – ones that could put the children at a real risk of danger.

The Problem With Equal Shared Parenting

Equal shared parenting assumes both parents deserve equal parts of the parenting responsibilities unless a clear reason states why they should not. This means while they recognize in instances of abuse that the abusive parent should not have parenting rights, it may also mean children may slip through the cracks and remain around their abuser.

With ESP, a mother and her legal team would need to prove without any question that abuse occurred between the father and the children. In many cases, the abuse could be emotional or otherwise difficult to prove. If a mother cannot come up with efficient evidence, the father would still retain equal parenting rights.
This idea can pose dangerous threats to families at an already sensitive time. Many abuse victims don’t take the necessary steps to record and report instances of abuse. Whether scared of retaliation or they believe it won’t happen again, abuse victims don’t necessarily document their circumstances. Unless they happen to still show signs of the abuse or a situation happens during the court process, it remains nearly impossible for the mother to prove.

This can have incredibly an incredibly detrimental impact on children throughout their lives. In addition to the mental illness risk associated with fear and not being heard, growing up in an abusive household has also been linked to increased physical medical conditions throughout life.

The Adverse Childhood Experiences Study found that around 64 percent of their 17,000 participants had experienced at least one exposure to trauma at home. The results linked childhood exposure to violence, abuse and impaired caregivers with conditions such as cancer, heart disease and early death.

Without ESP, both parents must state their case as to why they should have custody of the child. This allows for more freedom between the separation and more flexibility, giving parents the option to share different kinds of custody. However, even with the different types of child custody, including varying levels of involvement, some children would remain safer and better off with no involvement from their abusive parent.

Dealing With Custody Agreements in a Separation

There is no clear answer to handling a custody separation. With everyone’s lives and livelihood at stake, it can prove overwhelming and challenging to come up with the right answer. However, looking at each situation on a case by case basis is important for any family.

Although many men feel treated unfairly in a custody case, this isn’t really true. Assuming fathers automatically deserve shared custody may grant some fathers more than they deserve. This may not improve the circumstances of the fathers who do deserve to be a part of their children’s lives.

Making it more difficult for mothers to prove that their spouse has been abusive to the children may cause them to fear a separation even more. If they know that the other spouse will have an equal say in raising the kids, they may not want to go through that process because of the retaliation an abusive father may have on the children.
Fathers who deserve a place in their children’s lives should have equal access and control when compared to the mother. However, assuming either parent should maintain rights leaves a dangerous trail. The equal shared parenting bill may prove dangerous. Is it worth risking the lives and health of children?

A better solution needs to ensure fathers are getting a fair case in a separation, but granting them immediate shared custody may not be the way.

Kate Harveston is a freelance writer and blogger from the states. Her writing covers social justice issues and current events in the U.S., Canada, and all over the world. When she’s not writing, she can be found curled up with a book or exploring the city for new things to do. You can follow her writing by visiting her blog, Only Slightly Biased.



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