A recent court decision pushes Ontario one step closer to providing equal rights for queer families.
Yet, the decision — which would allow lesbian coparents to both be listed on the Statement Of Live Births — still doesn’t keep up with all reproductive technologies or unusual situations queer couples may face.
Justice Paul Rivard of Ontario’s Superior Court Of Justice ruled Jun 6 that lesbian moms can both be listed on the birth record immediately. Babies must be registered within 30 days of birth, and that registration document is required to obtain a birth certificate.
Right now, legal status for two mothers is obtained only by the nonbiological parent applying to adopt her partner’s child, after the birth certificate was received. That process costs about $1,000.
In the case, Rutherford Versus The Registrar General Of Ontario, four lesbian couples challenged the Vital Statistics Act. In each of the pairings, one mother was artificially inseminated and bore the child.
Rivard found the Vital Statistics Act to be both outdated and discriminatory. Rivard has given the government 12 months to make the necessary legislative changes to address his ruling. The mothers involved, however, already won their victory earlier this spring when Rivard approved a declaration of parentage.
Ontario is not leading the way in updating its Vital Statistics legislation. British Columbia, Quebec, Manitoba, New Brunswick and even Alberta all permit both same-sex parents to have their names put on the birth certificate.
In Alberta, a 2005 ruling ordered the government to treat lesbian spouses like straight couples, allowing the nonbiological parent’s name on the birth registry.
“It’s parent and parent, not mother and father,” says Sandra Sebree, the Alberta lawyer who brought forward a 2000 case by lesbian parents. “I have never done it for two men, but it’s possible for a birth certificate to have two men’s names.”
Though the Ontario government can appeal the ruling, a motion to deal with it is expected to be introduced at Queen’s Park this week.
Joanna Radbord, cocounsel with Martha McCarthy in the challenge — both of same-sex marriage court challenge fame — says she hopes the government won’t appeal the decision. She says she found it sad they fought it in the first place.
“They ended up not just fighting the case but fighting it tooth and nail. They fought right to the bitter end,” says Radbord.
In the case of one of the four couples, a fertilized egg from one woman was implanted into the other, who carried the baby to term. Yet a DNA test was required before both women were allowed to be included on the birth registration.
Fathers on the other hand, may be completely absent from a birth registration. Birth mothers can indicate unknown if they don’t know the name of the father or choose not to name him.
Yet, when Kevin Durkee’s daughter Taylor was born using his sperm, an anonymous donor egg and a surrogate mother, the registration process required him to name a biological mother. Neither the surrogate nor Durkee wanted her name on the birth record.
“The simple answer is that we had to get a court order to apply for a birth certificate because the Vital Statistics Act says we need mother information at birth. The court decided that I had the right to register Taylor’s birth as a single parent.”
It cost him $8,000 (half of which he was refunded) and a drawn-out legal battle. Durkee was originally told that to become Taylor’s sole parent he would have to apply to adopt his daughter, though he is biologically her father.
Durkee’s case was used in the recent Charter challenge, and in 30 to 40 other cases, he estimates.
It will likely be used again when AA Versus BB Versus CC is heard by the Ontario Court Of Appeal this September. In this case, being heard in London, two lesbian mothers and a male biological father all sought to be listed on the birth certificate, but Justice David Aston said he could not grant declarations of parentage in favour of two mothers.
Rabord says her clients will be seeking leave to intervene in the London case, which is now being fought as a Charter challenge. She says a Charter analysis will be helpful and that the arguments and reasoning are equally applicable to the Children’s Law Reform Act as they were to the Vital Statistics Act.
California is considered to have the most advanced laws regarding the idea of “intended parents,” because courts there will uphold various agreements between egg donors, sperm donors, surrogates and intended parents, regardless of biological links.