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Surrogate is not a legal parent, judge rules

Same-sex Saskatchewan couple will appear on birth certificate

Two men and a baby at Ottawa Pride. Credit: Ben Welland
The name of a surrogate who carried a baby for a Saskatchewan same-sex couple will be removed from the child’s birth certificate after a judge ruled she is not the biological mother.
 
Queen’s Bench Justice Jacelyn Ann Ryan-Froslie said the woman, referred to as Mary, was only a surrogate because she carried ova donated from another anonymous woman and sperm from one of the fathers. 
 
The child, called Sarah, was born in August 2009. Ryan-Froslie’s judgment means Sarah’s two fathers, identified only as John and Bill, will be listed on the birth certificate as father and other parent.
 
Ryan-Froslie found that although the Vital Statistics Act defines “mother” as the woman who delivered a baby, this no longer means she is also a parent.
 
“In this case, I am satisfied on a balance of probabilities that Mary, the gestational carrier, is not Sarah’s biological mother,” she wrote. “Naming her as Sarah’s mother on the registration of live birth raises a presumption that she is also Sarah’s biological mother.”
 
Mary was in favour of the decision to keep her name off the birth certificate.
 
Angeline Acain, publisher of Gay Parent magazine, thinks the decision is a positive advancement for queer parents.
 
“I think what’s trying to be accomplished is that the fathers want to be the sole parents,” she says. “I think that’s what we in the gay community are trying to work towards, having parents recognized. The woman who is a surrogate, that was not her intention, to become a parent.”
 
In 2002 an Ontario judge ruled similarly, finding that a gestational carrier could not be called the “mother.”
 
In another landmark case, a 2007 Ontario Court of Appeal ruled that a child could have three parents. The court found that the long-term same-sex partner of a five-year-old Ontario boy’s biological mother was also legally a parent.