Perspectives on Surrogacy 2

Friday, March 3, 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.

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Emmett Brownscombe

The Fears about the Unreliable Stork are Overstated: The All Families are Equal Act and the Enforceability of Surrogacy Agreements

In an attempt to respond to the rising public demand for an injection of legislative clarity into the murky legal waters surrounding surrogacy, the Ontario government has enacted the All Families are Equal Act (AFEA). The act has been celebrated as an effort to limit discrimination against the rising number of families who use surrogacy to have children, but there are some members of the fertility law community who are concerned that the act may create more problems than it solves.[1]

One provision of the act garnering criticism is the declaration that all surrogacy agreements are unenforceable. The decision is likely the product of a well-intentioned desire to respect a surrogate mother’s bodily autonomy by affording her the final say over what will happen to the child she births.[2] Surrogacy agreements often place significant restrictions on the freedom of the surrogate during the nine months that she carries the child.[3] With this in mind, it is understandable that there is hesitancy to combine uncomfortably restrictive contractual terms with a rigid legal standard of enforceability. However, critics of the new legislation fear that it will put the parties of a surrogacy contract in an even more precarious legal position.

The issue stems from the AFEA’s disregard of the important distinction between traditional and gestational surrogacy. Traditional surrogacy occurs when the surrogate mother is genetically connected to the baby she is carrying.[4] The far more common type of surrogacy is gestational, where the surrogate has no genetic connection to the child.

Historically, the courts have not viewed agreements in relation to traditional surrogacy as enforceable. There has been an understandable unwillingness to enforce a contract that may force a mother to surrender a child she has a genetic connection with. Courts have been much more comfortable enforcing gestational carriage arrangements. However, the AFEA’s declaration that all surrogacy contracts are now unenforceable has given rise to a fear that the participants in a gestational surrogacy are at a greater risk of being denied parental control of a child with whom they are genetically connected. Theoretically, a surrogate mother may also be placed in the position of parenting a child she has no genetic relationship with should the intended parents change their mind.
However, there is good reason to believe that the feared consequences of the AFEA will likely never come to fruition. The declaration that all surrogacy contracts are unenforceable does not leave the parties without any legal recourse. The Act does allow for surrogacy contracts to be used as evidence of intention in any potential parentage dispute.[5] Another important element of the AFEA is that it requires a court to consider the best interests of the child when making a decision regarding parentage.[6] The combination of these two provisions suggests that the genetic parents of the child would be far more likely to be awarded parentage should a legal dispute arise.

The case law in Ontario relating to surrogacy also suggests that the genetic connection would likely be given priority in any legal dispute. In M.D. et al v L.L et al — a 2008 surrogacy case in which the genetic parents of the child sought a declaration of parentage — the Ontario Superior Court of Justice relied heavily on the terms of the gestational carriage arrangement, a contract which neither party disputed in the case.[7] The court said that genetic testing would be an appropriate tool to determine parentage in cases where the gestational carriage arrangement is under dispute.[8] This affirmed the Court’s earlier decision in J.R. et al v L.H. et al, a case in which genetic testing was conducted in support of a finding of parentage.[9] The Ontario Superior Court’s receptivity to genetic testing suggests that a situation in which an intended parent is denied parentage of their genetic offspring is unlikely to occur.

Although the AFEA’s declaration regarding the enforceability of surrogacy agreements has raised plenty of eyebrows, the combination of some of the other provisions of the Act and the Ontario case law regarding surrogacy suggests that the legal security of genetic parents is not as compromised as some critics of the Act would have you believe.

Emmett Brownscombe is a first law student at the University of Ottawa. He is from Peterborough, Ontario, and hopes to one day practice criminal law


[1] Sara R Cohen, “The All Families are Equal Act is Problematic for Surrogacy in Ontario. Here’s Why” (5 September 2016), Fertility Law Canada (blog), < http://www.fertilitylawcanada.com/fertility-law-canada-blog/the-all-families-are-equal-act-is-problematic-for-surrogacy-in-ontario-heres-why >.
[2] Karen Busby, “Of Surrogate Mother Born: Parentage Determinations in Canada and Elsewhere” (2013) 25: 2 CJWL 285 at 303.  HYPERLINK
[3] Erin Lepine, “Reproductive Labour? The Law and Policy of Surrogacy” (16 November 2016), online: YouTube <https://www.youtube.com/watch?v=Dpfp--_cXoQ >.
[4] Dave Snow, “Measuring Parentage Policy in the Canadian Provinces: A Comparative Framework” (2016) 59:1 Can Pub Administration 5 at 9.  HYPERLINK
[5] All Families are Equal Act, SO 2016, c C-23, s 10 (9).  HYPERLINK
[6] Ibid at s 10 (8).
[7] MD et al v LL et al, [2008] 90 OR (3d) 127. HYPERLINK
[8] Ibid at para 47.
[9] JR et al v LH et al, [2002] OJ 3998. HYPERLINK
Designed by Rachel Gold.