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.



The Best Places for Women to Live and Work in Canada

Thursday, June 1, 2017


Oh, Canada — our vast country has plenty of great cities and towns, but of those top-tier places to live, there are a few that are particularly wonderful for women. That’s because they marry a great quality of life with ample opportunity to work for employers who value their female employees.
Ready to pack up and move to a place prime for female employment and empowerment? Try one of the following five cities:

1. Victoria, BC
A recent survey placed Victoria at the top of the list of Canada’s most female-friendly cities. Why did it reach the top? Because Victoria has the most women in positions of power — literally in government — than any other Canadian city.
On top of that, Victoria has a nearly equal employment level among its male and female residents and unionized public-sector positions, which means government employees are paid well.

2. London, Ontario
London has a full slate of attractions — wineries, first-class restaurants, sports — that’ll make living there fun. But the state of employment there is good, too, and it’s one only a few Canadian cities where there are more men in poverty than women. That’s a figure that should be fixed for both sexes, but it does show that there’s plenty of well-paying work to go around in London.

3. Gatineau, Quebec
The waterfront views in Gatineau will rope you into the city, but you’ll stay for the fair wages. In Gatineau, women make 87 cents to every dollar that men do. It’s still an unfair gap — there should be no gap at all — but the fact that it’s much higher than the average 74 cents to the dollar that women take home in Canada.

Women in Gatineau make more money and regularly achieve high-level positions. The city is seeing more women promoted into senior management positions.

4. Abbotsford-Mission, BC Abbotsford and Mission are both extremely safe destinations for women on the move: the rate of sexual assault and violence between intimate partners is much less than the national average. For women, this is even more of an important figure, considering women are 11 times more likely to be victims of this type of crime or abuse.
Moving to Abbotsford or Mission could be a smart move for those involved with local government, too. The area has a fairly staffed city council with an almost 50-50 breakdown of men and women on staff.

5. St. Johns, NL
More than half of the women in St. Johns, NL, are employed full-time. This is the second-highest rate of employment for women in the country, according to the Canadian Research Institute for the Advancement of Women. The government isn’t as equally staffed as some of the other cities, but women here are more likely to have higher education levels than their male counterparts.

This isn’t an exhaustive list of all the cities in Canada where women thrive — the aforementioned survey by the Canadian Research Institute for the Advancement of Women found 13. But these are all top contenders and promise more equality and opportunity than some of the other dots on your map.

Bio:

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.

Perspectives on Legal Responses to the Sex Trade III

Monday, April 17, 2017

Perspectives on Legal Responses to the Sex Trade III

 The Shirley Greenberg Chair in Women and the Legal Profession presented two events during the 2016-17 academic year showcasing a variety of perspectives on legal responses to the sex trade. Faculty members, staff, students, alumni and the broader University of Ottawa community hold very different opinions on the appropriate legal response to the sex trade in Canada, reflecting a spectrum of positions from abolitionism to de-criminalisation or legalisation. These events are intended to provide a venue for the respectful expression and debate of opinions along this spectrum.

The first event took place in the fall term, on September 22nd, 2016, and featured three speakers whose positions reflect a diversity of abolitionist perspectives.  The second event, which took place on March 29th, 2017, featured three speakers whose positions reflect a variety of legalisation and de-criminalisation perspectives. The order of these events was dictated by the availability of the speakers, and does not reflect a hierarchy of ideas.

One of the most important roles of a university is to create an environment for the free, respectful expression and exchange of ideas. At the Faculty of Law we aim to foster a space of inquiry, learning, debate and exchange. These two events were designed to educate the members of the law school community on the relevant debates, and to provide a forum for respectful questioning and discussion.

Below you will find the list of speakers from each panel, a link to an audio podcast of each event, any Power Points that were used, and  a series of links to information on the spectrum of proposed legal responses to the sex trade.

Some audio presentations and Power Points contain explicit sexual content and/or describe sexual and other forms of violence.
_______________________________________________________________________________

Panel 1: September 22, 2017
Abolitionist Perspectives on the Sex Trade

Panelists:

1) Bridget Perrier is a First Nations woman and co-founder of Sextrade101 (http://www.
sextrade101.com/).

2) Dr. Ingeborg Kraus is a Psychologist and trauma expert based in Germany.

3) Detective Inspector Simon Häggström, Stockholm Police Force Prostitution Unit.


Link to audio podcast of panel.

Power Point Presentation Detective Inspector Simon Häggström.

Power Point Presentation Dr. Ingeborg Kraus.
_________________________________________________________________________________
Panel 2: March 29th, 2017
Advocating for Sex Worker's Rights

Panelists:

1) Anna-Aude Caouette is a sex worker's rights activist.

2) Sandra Chu is the Director of Research and Advocacy, Canada HIV/AIDS Legal Network.

3) Kate Shuetze is a policy advisor to Amnesty International.

Link to audio podcast of panel. 

Power Point Presentation of Anna-Aude Caouette.

Power Point Presentation of Sandra Chu.

Power Point Presentation of Kate Shuetze.

________________________________________________________________________________

Links to information on the spectrum of proposed legal responses to the sex trade:

Amnesty International’s research and policy work on decriminalization (set in an international context).


Emily Bazelon writes about the history of difficult feminist discussions on the sex trade.  

Janine Benedet offers an abolitionist perspective.

The Open Society Foundations offers Ten Reasons to Decriminalize Sex Work.

The Social Action and Executive Committees of the Canadian Association of Elizabeth Fry Societies passed an abolitionist resolution.

Jane Doe's new op-ed on sexual assault

Friday, March 24, 2017

Jane Doe, who presents uOttawa law's  annual Greenberg lecture on sexual assault law and policy, has recently published an op-ed in Toronto Now.

Perspectives on Legal Responses to the Sex Trade II

Monday, March 13, 2017

Perspectives on Legal Responses to the Sex Trade II

 The Shirley Greenberg Chair in Women and the Legal Profession will present two events during the 2016-17 academic year showcasing a variety of perspectives on legal responses to the sex trade. Faculty members, staff, students, alumni and the broader University of Ottawa community hold very different opinions on the appropriate legal response to the sex trade in Canada, reflecting a spectrum of positions from abolitionism to de-criminalisation or legalisation. These events are intended to provide a venue for the respectful expression and debate of opinions along this spectrum.

The first event will take place in the fall term, on September 22nd, 2016, and will feature three speakers whose positions reflect a diversity of abolitionist perspectives.  The second event, planned for March 29th, 2017, will reflect a variety of legalisation and de-criminalisation perspectives. The order of these events is dictated by the availability of the speakers, and does not reflect a hierarchy of ideas.

One of the most important roles of a university is to create an environment for the free, respectful expression and exchange of ideas. At the Faculty of Law we aim to foster a space of inquiry, learning, debate and exchange. These two events are designed to educate the members of the law school community on the relevant debates, and to provide a forum for respectful questioning and discussion.

Below you will find a series of links to information on the spectrum of proposed legal responses to the sex trade.

Amnesty International’s research and policy work on decriminalization (set in an international context).


Emily Bazelon writes about the history of difficult feminist discussions on the sex trade.  

Janine Benedet offers an abolitionist perspective.

The Open Society Foundations offers Ten Reasons to Decriminalize Sex Work.

The Social Action and Executive Committees of the Canadian Association of Elizabeth Fry Societies passed an abolitionist resolution.

Valuing Discourse: Senators Discuss INAC’s “Unstated Paternity” Policy

Friday, March 10, 2017

Valuing Discourse: Senators Discuss INAC’s “Unstated Paternity” Policy



When Members of Parliament and Senators borrow, assimilate, or adopt gender-neutral language such as “unstated parentage” or “unnamed parent” when the discrimination is anything but, they potentially approve legislation that harms mothers and babies.

Prior to 1985 the Indian Act protected children born to mothers when their father’s signature was not recorded on their birth certificate in that they were considered to be an Indian. When the Indian Act was amended this protection was removed. What then resulted is the Registrar of Indian and Northern Affairs Canada (INAC) gained more control when processing applications in situations of unknown, unacknowledged, unrecognized, unnamed, and unstated paternity.[1] It was at this moment when power was more firmly in the hands of administrators rather than legislation where as a result INAC began to more easily apply its goal of the need to eliminate the Indian problem. The new low being, mothers and babies became the target.

At first there was no written policy, but eventually INAC posted on line its “unstated paternity” policy. While the name of the policy itself is an issue in that it clearly blames mothers, the policy guides people to have their birth certificate amended, or obtain a statutory declaration signed by both parents. Another option offered is a statutory declaration from the biological father’s family members.[2]

These options offered by INAC do not capture the lived reality of conception, birthing, and the failure of documents to understand the lived reality of abusive situations. For example, INAC’s policy does not account for situations of rape where mothers do not know the father best known as the offender; situations of domestic violence where mothers need to protect themselves and their child; and then there are situations where fathers refuse to acknowledge the child.

The process of naming is important to pay attention to because oftentimes power is inherent. The words people rely on shape the way people think, and therefore have the potential to shape remedies if needed. Of course this process of word use as shaping our thinking includes elected Members of the House of Commons and appointed Senators who make up the Legislative Branch of the Government of Canada.

My point is that while INAC names their policy “unstated paternity”, it is best to understand the situation from within the lived reality of mothers where “unknown paternity”, “unrecognized paternity”, “unacknowledged paternity”, and “unnamed paternity” are more appropriate word choices.

As many know, recently INAC tabled Bill S-3, An Act to amend the Indian Act. This Bill was a response to a 2015 Quebec court decision by Justice Masse[3] in the Stéphane Descheneaux, and the Susan and Tammy Yantha case.[4] Although she was embarrassed about the lack of consultation with interested parties in the development of the Bill, the Minister of INAC, Carolyn Bennett, moved the Bill forward.[5]

In late November through early December 2016, interested parties had the opportunity to speak to members of the House of Commons Standing Committee on Indigenous and Northern Affairs,[6] as well as to the Standing Senate Committee on Aboriginal Peoples.[7] Many of the parties such as Descheneaux, Sharon McIvor, the Legal Education and Action Fund (LEAF), and the Quebec Native Women Inc. were unhappy because of the lack of proper consultations where as a result the Bill failed to address all the sex discrimination in the Indian Act.

As it stands today, INAC has been granted an extension so proper consultations and reconsideration of the content of the Bill can occur.[8] Regardless, there was something rather peculiar I noticed as I listened to these House and Senate discussions specifically regarding the word choice when discussing the issue of unknown and unstated paternity. As many know I have been working on this very issue for over 31 years.

Perplexed and concerned with the word shifting process as I was I opted to complete an analysis of the language that interested parties, the Assistant Deputy Minister, the counsel for the Department of Justice, the Minister of Indigenous and Northern Affairs, and Senators relied upon when talking about the issue of “unknown and unstated paternity”.

When speaking with the House of Commons interested parties relied on the language of “unstated paternity”; “so-called unstated paternity”; “unknown paternity”; and “unacknowledged paternity”. This language correctly names the issue. Minister Bennett also relies on this language during these discussions.

When speaking with the Standing Senate Committee, INAC Assistant Deputy Minister Joëlle Montminy relied on the language of “undisclosed and unknown paternity”; and the lawyer for the Department of Justice Martin Reiher relied on “unknown parent” adding further, “which is usually an unknown father”. Bravo, like Minister Bennett they relied on language that closely represents the lived reality of Indigenous women; but this changed. See below and please pay close attention.

During these same Senate discussions interested parties, some of whom I mentioned above, relied on “unknown parents”, “unstated paternity”, and “other reasons for not identifying the father”; But one Senator, an important and potential ally relied on “unknown parent”. This is the beginning of the unfortunate language shift.

Again, a few days later during these same Senate discussions Montminy and Bennett now, in my opinion, more cognisant of their goal rely on “unstated paternity and parenthood” and “unnamed parent”. Unfortunately, the same Senator remained with using “unknown parentage”.

In sum, and my point is, the shift in language use during these important discussions from “unstated and unknown paternity” to the gender-neutral language of “unknown parentage” and “unnamed parent” was first introduced by the Minister and ADM of INAC, both of whom are guided by the goal of the need to eliminate status Indians. The danger of naming without critical thought is that it begins to shape the thinking of Members of Parliament and the Senators, potentially preventing them from understanding the sex discrimination that harms mothers and babies. It is really sad when women, mothers, and potential allies adopt the oppressor’s language as has happened during these discussions.

We must not allow the very people and organizations such as INAC who hold power over others to name reality in a way that is misleading and inadequate of the lived reality of oppressed people. I have come to know that sometimes gender-neutral language is just more of the same; more specifically, sometimes gender-neutral language is disguised patriarchy.


Lynn Gehl, Ph.D. is an Algonquin Anishinaabe-kwe from the Ottawa River Valley. Her book The Truth that wampum Tells: My Debwewin on the Algonquin Land Claims Process was published in 2014 with Fernwood. She has a new book coming out with University of Regina Press in the fall of 2017 called, Claiming Anishinaabe: Decolonizing the Human Spirit.






[1] http://journals.sfu.ca/fpcfr/index.php/FPCFR/article/viewFile/187/204
[2] https://www.aadnc-aandc.gc.ca/eng/1334234251919/1334234281533
[3] http://www.canlii.org/en/qc/qccs/doc/2015/2015qccs3555/2015qccs3555.html
[4] http://www.dionneschulze.ca/wp-content/uploads/2015/09/2015-09-04_Lawyers-Weekly_Parliament-given-18-months-to-amend-Indian-Act.pdf
[5] https://www.thestar.com/news/canada/2016/11/30/carolyn-bennett-admits-bill-to-change-indian-act-was-badly-handled.html; https://www.youtube.com/watch?v=zgM9SKs7dLw
[6] http://www.parl.gc.ca/Committees/en/INAN/StudyActivity?studyActivityId=9201168
[7] https://sencanada.ca/en/committees/appa/studiesandbills/42-1
[8] http://www.cbc.ca/news/indigenous/court-extension-update-indian-act-1.3953515

Perspectives on Surrogacy 3

Tuesday, March 7, 2017

In December of 2017 the Greenberg Chair in Women and the Legal Profession held a panel on surrogacy, where several prominent feminist lawyers and academics discussed their perspectives. A large number of University of Ottawa Faculty of Law students attended the event, and many blogged about it as part of an assignment in first year property law. Over the next few weeks this space will feature the diverse opinions of a number of our students.

In May 2017 uOttawa law Profs Angela Cameron and Vanessa Gruben along with their colleague Alana Cattapan of Dalhousie University will host a two-day workshop on the law and policy of surrogacy in Canada featuring national and international experts. Several uOttawa law students will participate in this event, and we will post their reactions to the workshop here.

_________________________________________________________________________________

Eman Jeddy*

Baby Mama Drama: What Canada can learn from California about Commercialized Surrogacy 


Canadian surrogacy laws are confusing at best and incomplete at worst. What is clear is that altruistic surrogacy is legal but commercialized surrogacy isn’t. Under section 12 (s. 12) of the Assisted Human Reproduction Act 2004, a surrogate mother can be reimbursed for out of pocket expenses, but cannot be paid to carry a baby for someone else[1]. However, in the 12 years since the act was passed, Health Canada, the agency in charge of implementing the act, has yet to provide the regulations that define out-of-pocket expenses. The result is a legal grey area for intended parents, surrogate mothers, and third parties as to what costs can be legally reimbursed. The penalty for breaching s.12 can be as high as a 5-year imprisonment or a $250,000 fine[2]. In the absence of clarity regarding the law, the surrogacy community has developed a set of ad hoc standards over what costs are acceptable for reimbursement. Medical and clothing expenses are generally thought of as reimbursable, while lost wages veer too close to compensation. But even with these ad hoc standards in practices, parties remain vulnerable to prosecution. In 2013, Leia Picard, Director of Canadian Fertility Consulting, admitted to paying between $22,000-$26,000 to three women to be surrogate mothers and was fined $60,000. In the agreed statement of facts of her case was the following sentence: “Health Canada policy permits reimbursement to donors and surrogates of expenses and disbursements related to donation or surrogacy.”[3] However, some scholars disagree with this assertion, citing the Supreme Court’s ruling on the Assisted Human Reproduction Act, which states any sort of reimbursement cannot take place until Health Canada enacts regulations[4].

There’s a second issue with surrogacy laws in Canada. Surrogacy agreements (or contracts) cannot be enforced in courts[5]. This has profound implications for all parties involved in the surrogacy process. Without the safety net of legal enforcement, parties are left vulnerable to breaches. For a surrogate mother, if the intended parents decide not to reimburse her for the costs they once promised to pay for, there is no legal recourse she can seek. Alternatively, if the intended parents change their mind about having the baby, no mechanism compels them to take parental responsibility. A child’s “legal mother” is the woman who gave birth to her, regardless of whether or not her egg was used to conceive the child[6]. The surrogate mother is forced to assume responsibility. The reverse of that situation can also occur. If a surrogate mother decides that she wants to keep a baby she carried to term, the intended parents cannot ask a court to compel her into specific performance. Under the current framework, or lack thereof, surrogacy arrangements rely completely on the good faith and honesty of the parties involved and the hope that no laws are broken in the process.

To reform the system, Canada should look to the U.S. state of California, one of the few places in the western hemisphere that has legalized commercial surrogacy. In California, only gestational carrier surrogacy – where a woman provides her womb and carries a child, biologically unrelated to her, to full-term – can be contracted for. Under state law, a surrogate mother is not recognized as having parental rights since she is not biologically related to the baby. The courts therefore hold consideration valid in gestational surrogacy contracts because the benefit to the surrogate is compensation “for her services in gestating the fetus and undergoing labor, rather than giving up ‘parental’ rights to the child.”[7] This model not only protects both parties’ interests but also provides a better framework for what costs can and cannot be covered in a surrogacy agreement. Furthermore, under the Home Care Services Consumer Protection Act 2013, the legal parents must be established prior to the child’s birth in a parentage action delivered to a county court.[8] Brought to Canada, this kind of law would eliminate the issues around surrogacy that currently exist. The California act also requires the intended parents and the surrogate be represented by separate council, limiting the possibility of exploitation that is inherently present in a surrogacy agreement. As a result, California enjoys a clear and regulated surrogacy industry that provides children for intended parents and upwards of $100,000 for surrogate mothers. It’s time for Canada to follow suit and provide a well-defined system that protects, rather than ignores, consenting parties looking to exchange services.  

Eman Jeddy is a first year common law student at UOttawa.



[1] Bill C-6, Assisted Human Reproduction Act, 3rd Sess, 37th Parl, 2004, cl 12.
[2] Jocelyn Downie & Françoise Baylis, “Transnational Trade in Human Eggs: Law, Policy, and (In) Action in Canada” (2013) 40:1 J L Medicine & Ethics 224 at 228 [Baylis. “Transactional Trade”]

[3] Françoise Baylis, Jocelyn Downie & Dave Snow, “Fake it Till You Make it: Policymaking and Assisted Human Reproduction in Canada” (2014) 36:1 J Obstetrics & Gynecology Can 510 at 511.
[4] Ibid.
[5] Susan G Drummond, “Fruitful Diversity: Revisiting the Enforceability of Gestational Carriage Contracts” (2013) Osgoode Hall Law School of York University Working Paper No 25/2013.
[6] Ibid.
[7] Jennifer Jackson “California Egg Toss: The High Costs of Avoiding Unenforceable Surrogacy Contracts” (2005) 15:2 J High Technology L 230 at 243.
[8] Richard Vaughan, “California Surrogacy Law Takes Effect Jan. 1” International Fertility Law Group (26 Nov 2012), online: <https://www.iflg.net/california-surrogacy-law-to-take-effect-jan-1/>.

Designed by Rachel Gold.