Proposed changes in Manitoba to update the legal definition of a parent are being praised as a long-needed modernization, but one lawyer says there is a glaring exception.
The proposed amendments to Manitoba’s Family Maintenance Act, which were introduced on Thursday, will clarify the legal definition of parentage for a child who was conceived through assisted reproduction with or without surrogacy.
“This is a very important step forward for a lot of Manitoba families,” Allison Fenske, a staff attorney for the Public Interest Law Centre of Legal Aid Manitoba.
“Folks who use assisted reproduction will now be able to be recognized as the legal parents of their children automatically on the birth of their child without having to go to court.”
She said this certainty of being a child’s legal parent is necessary both for the child and parents to have a legal relationship.
Fenske said this is a long-needed modernization of the Family Maintenance Act, which was last amended in 1987. The current act has affected members of the LGBTQ2S+ community who rely on reproductive technologies to start a family.
“This was an act that absolutely had not kept pace with evolving use of technology and also evolving acceptance of different ways of creating families and social norms around who makes a family,” she said.
Fenske is among the lawyers who represented seven different families in Manitoba who launched a legal challenge of the act.
As a result of this challenge, the court declared in 2020 that certain sections of the Family Maintenance Act are unconstitutional and found the legislation infringed on certain sections of the charter.
Justice Minister Cameron Friesen said the court ruled that Manitoba must clarify its legislation and make changes to the act to properly recognize the rightful parents of a child.
“Legal parentage is an important concept in law as it determines a child’s identity, citizenship, inheritance rights and entitlement to benefits under federal and provincial law, and we are bringing in these changes in order to comply with the deadline placed by the courts on the province to address the definitions,” Friesen said in a news release.
Fenske said these changes would not have come had it not been for these families.
‘ONE GLARING EXCEPTION’
“In many ways, this is something worth celebrating with one glaring exception,” Fenske said, pointing to how the province addresses parents who use a surrogate.
The province said the amendments include a requirement for surrogacy agreements before a child is conceived, a process for surrendering the child to the intended parents, and exceptions for when a surrogate does not consent to surrendering the child.
Fenske said the province will continue to rely on a court order—called a declaration of parentage—to recognize that the intended parents, not the surrogate, are the parents of the child.
“There are other Canadian provinces that use administrative models, or just automatically recognize parents when certain criteria are satisfied, and don’t force parents to go to court to be recognized,” she said.
Fenske said her clients hope if the changes do go through that the court process for parents who use surrogates will be expedited.
Friesen said provinces including Ontario, Saskatchewan, Alberta, British Columbia, Nova Scotia and Prince Edward Island have already updated their parentage laws.
-With files from CTV’s Kayla Rosen and Charles Lefebvre
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