Nova Scotia Law Reform Report on Parentage in the Context of Surrogacy and Sperm, Egg and Embryo Donation

The Access to Justice & Law Reform Institute of Nova Scotia has published its final report on Extending Legal Parentage in the Context of Surrogacy, and Sperm, Egg, and Embryo Donation.

From the Executive Summary:

"This Final Report makes recommendations on how Nova Scotian law should identify a child’s parents when the child is conceived via assisted reproduction (sperm, egg and embryo donation and/or surrogacy). This status is known as legal parentage. While subject to change through formal legal processes such as adoption, for most people legal parentage is an automatic and immutable status upon which their identity is built. For children, parentage legally situates them in the world. Rights based on kinship, such as inheritance, also flow via parentage. For parents, legal parentage provides the immediate presumptive status from which they are given standing to provide the parenting, care and support of children."

"In light of this foundational role, it is vital for legal parentage to reflect the social landscape within which Nova Scotians live, and the various ways families are created. It is also critical that parentage laws be accessible, understandable, and non-discriminatory. This need is most immediate in the context of surrogacy and assisted reproduction. Nova Scotia’s current approach to these families may give rise to discrimination under both the Canadian Charter of Rights and Freedoms and the Nova Scotia Human Rights Act."

"Nova Scotia is the only jurisdiction in Canada that lacks parentage legislation. At present, our parentage laws are based on two archaic common law presumptions: the woman who gives birth to a child is that child’s mother, and her husband is the father. Mechanisms to prove (or disprove) parentage outside of these presumptions are largely based on biology proved by genetic testing."

"There are a number of overarching problems with this outdated regime. First, it does not recognize all families living in Nova Scotia today. Many people have children outside of these constraints, including members of the 2SLGBTQIA+ community. At present, people outside the scope of Nova Scotia’s parentage laws must either formally adopt their own child or ask the Registrar of Vital Statistics to be listed on birth registry documents. The expense, uncertainty, and intrusiveness of asking people to adopt their own children undermines family autonomy and devalues certain family forms (...)"

"Second, existing rules fail to account for parentage in cases of assisted reproduction. Canadians are increasingly using sperm, egg and embryo donation to have children. These technologies separate the link between biology and parentage in a way that is not contemplated by our law. This puts parents who use donated reproductive material in a precarious situation vis-à-vis their children and jeopardizes the substantive legal rights that flow from kinship to children."

"Third, existing mechanisms to account for children born via surrogacy are onerous and outdated. While Nova Scotia does have a method to recognize parents via surrogacy, at the time of writing, these laws arguably place a great deal of risk with the surrogate, exclude parties who lack viable genetic material, and mandate judicial oversight in every case (...)"

"The Institute takes the position that, as social and cultural understandings of parentage change, so too should the law’s response. This Report addresses some of the longstanding gaps in Nova Scotia’s parentage law and seeks to bring the law in line with modern realities of family creation in our Province. "