Of surrogate mother born: Parentage determinations in Canada and Elsewhere

Canadian Journal of Women and the Law

Volumn 25, Issue 2, 2013, Pages 284-314

  Busby, Karen ^a  

^a NONE

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EID: 84891771125     PISSN: 08328781     EISSN: 19110235     Source Type: Journal    
DOI: 10.3138/cjwl.25.2.284     Document Type: Article

References (65)

1. As reported, respectively, by Tom Blackwell, "Surrogates Often Deeply Upset by the Process: Study," National Post (23 September 2011), online: National Post 〈http://news.nationalpost.com/2011/09/23/surrogates- often-deeply-upset-by-the-process-study/〉
2. and "Areas of Practice: Surrogacy," online: Dunphy Best Blocksom LLP 〈http://dbblaw.com/inside-areas-surrogacy-law.html〉.
3. As reported in Tian v Canada (Citizenship and Immigration), 2011 CanLII 75008 (IRB) at para 14 [Tian]; Genesis Fertility Centre, "Surrogacy," online: Genesis Fertility Centre 〈http://genesisfertility.com/fertility- services/surrogacy〉.
4. The information on commercial and cross-border surrogacy in Canada is based on a small sample size, case law, anecdotal accounts, or inferred from information from other sources. See Shireen Kashmeri, "Unraveling Surrogacy in Ontario, Canada: An Ethnographic Inquiry on the Influence of Canada's Assisted Human Reproduction Act (2004) on Surrogacy Contracts, Parentage Laws, and Gay Fatherhood" (MA thesis, Concordia University Department of Sociology and Anthropology, 2008) [unpublished]
5. online: Concordia University 〈http://spectrum.library.concordia.ca/ 975999/1/MR42482.pdf〉.
6. Kashmeri used computer-mediated communication to interview Canadian women who were commercial surrogates. Blackwell, infra note 71, and Karen Busby and Delaney Vun, "Revisiting The Handmaid's Tale: Feminist Theory Meets Empirical Research on Surrogate Mothers" (2010) Canadian Journal of Family Law 13 at 65
7. recount stories of Canadian women who were surrogates for non-residents-one was paid and the arrangements with the others are unclear. The web-based support network Surrogacy in Canada indicates that a surrogate mother's expenses could exceed $25,000. Surrogacy in Canada Online, "Costs of Surrogacy," online: Surrogacy in Canada Online 〈http://www.surrogacy.ca/services/cost-of-surrogacy.html〉.
8. Dunphy Best Blocksom LLP, "FAQs on Surrogacy in Canada," online: Dunphy Best Blocksom LLP 〈http://www.dbblaw.com/inside-areas- surrogacy-and-surrogate-motherhood.html〉 notes that "[i]t is illegal in Canada for a surrogate to derive income for her services. However, the surrogate's expenses and a reasonable amount for lost income (if applicable) can be reimbursed" and that "international couples are treated the same as resident couples when there is some genetic link to the baby."
9. Australian Families through Gestational Surrogacy, "Statistics on Babies Born to Australians" (2011), online: Surrogacy Australia 〈http://www.surrogacyaustralia.org/australian-babies-bornby-clinic/ statistics-on-babies-born-to-australians〉
10. as cited by Jenni Millbank, "The New Surrogacy Parentage Laws in Australia: Cautious Regulation or '25 Brick Walls'?" (2011) 35 Melbourne University Law Review 165 at n 165 and accompanying text.
11. Citizenship and Immigration Canada, "Assessing Who Is a Parent for Citizenship Purposes Where Assisted Human Reproduction (AHR) and/or Surrogacy Arrangements Are Involved," Operational Bulletin 381 (8 March 2012), online: Citizenship and Immigration Canada 〈http://www.cic.gc.ca/english/ resources/manuals/bulletins/2012/ob381.asp〉.
12. This document replaced the earlier document "Establishing Parentage for Citizenship Purposes Where Surrogacy/ Reproductive Technology Is Involved," Operational Bulletin 197 (12 April 2010), online: Citizenship and Immigration Canada 〈http://www.cic.gc.ca/english/resources/manuals/ bulletins/2010/ob197.asp〉. There are four reported cases and one newspaper account. Tian, supra note 2; Mann v Canada (Citizenship and Immigration), 2009 CanLII 84317 (IRB); Azziz v Canada (Citizenship and Immigration), 2010 FC 663 (available on CanLII);
13. Khosa v Canada (Citizenship and Immigration), 2010 CanLII 94141 (IRB);
14. Raveena Aulakh, "Couple Fights Federal Surrogacy Policy to Bring Their Boy Back to Canada," Toronto Star (11 August 2011), online: Toronto Star 〈http://www.thestar.com/news/gta/2011/08/20/couple-fights-federal- surrogacy-policy-to-bring-their-boy-back-to-canada.html〉.
15. See Howard W Jones et al., "International Federation of Fertility Societies Surveillance 2010," online: International Federation of Fertility Societies 〈http://www.iffs-reproduction.org〉.
16. See, for example, Françoise Baylis, The Regulation of Assisted Human Reproductive Technologies and Related Research: A Public Health, Safety and Morality Argument (August 2006), online: Centre for Human Rights Research 〈http://tesla.cc.umanitoba.ca/chrr/images/stories/AHR-expert-Aug-11-2006- FINAL.pdf〉;
17. Mohammad Jalal et al., "The 'Iranian ART Revolution': Infertility, Assisted Reproductive Technology, and Third-Party Donation in the Islamic Republic of Iran" (2008) 4:2 Journal of Middle East Women's Studies 1;
18. Centre for Social Research, "Surrogate Motherhood: Ethical or Commercial" (March 2012), online: India-Women in Leadership 〈http://www.womenleadership.in/Csr/SurrogacyReport.pdf〉.
19. Laws and protocols in inter-country adoption are well established and, while not without controversy, are designed to protect against trafficking in children. See, for example, Peter Hayes, "The Legality and Ethics of Independent Intercountry Adoption under the Hague Convention" (2011) 25 International Journal of Law, Policy and the Family 288;
20. Kelly M Wittner, "Curbing Child-Trafficking in Intercountry Adoptions: Will International Treaties and Adoption Moratoriums Accomplish the Job in Cambodia?" (2003) 12 Pacific Rim Law and Policy Journal 595;
21. David M Smolin, "Child Laundering: How the Intercountry Adoption System Legitimizes and Incentivises the Practices of Buying, Trafficking, Kidnapping, and Stealing Children" (2006) 52 Wayne Law Review 113.
22. See, for example, Centre for Social Research, supra note 7 at 6-8, 82; Raywat Deonandan et al., "Measuring Reproductive Tourism through an Analysis of Indian ART Clinic Websites" (2012) 5 International Journal of General Medicine 763;
23. Newspaper and online articles about commercial surrogacy in Ukraine, Thailand, and India all leave this impression. See, for example, Nishat Hyder, "India Debates New Surrogacy Laws," BioNews (7 February 2011), BioNews 〈http://www.bionews.org.uk/page-88796.asp〉. BioNews reports that a member of the drafting committee for a new Indian law (and medical director of a large clinic in Mumbai) says that the bill will make surrogacy "easy" (note that the bill has not yet passed). The doctor is also quoted as referencing a World Bank report that estimates India's commercial surrogacy industry will be worth US $2.5 billion by 2020.
24. See also Kishwar Desai, "India's Surrogate Mothers Are Risking Their Lives: They Urgently Need Protection," The Guardian (5 June 2012), online: The Guardian 〈http://www.guardian.co.uk/commentisfree/2012/jun/05/india- surrogates-impoverished-die〉;
25. Melanie Adams, "New Draft Law to Regulate Surrogacy in Thailand," Thailand Law Forum (24 June 2010), online: Thailand Law Forum 〈http://www.thailawforum.com/new-draft-surrogacylaw-thailand/〉;
26. Nicolas Lainez, "Should Commercial Surrogacy Be Legalised?" Bangkok Post (5 June 2011), online: Thai News Land 〈http://www. thainewsland.com/a448477-shouldcommercial-surrogacy-be-legalised〉.
27. See also sources referenced at Surrogacy Clinics, "Commercial Surrogacy in Ukraine" (1 April 2011), online: Surrogacy Clinics 〈http://www.surrogacyclinics.com/commercial-surrogacy-in-ukraine/〉
28. and on the Surrogacy in Ukraine website, Surrogacy in Ukraine 〈http://en.surrogacy-ukraine.com〉.
29. See also Permanent Bureau, Hague Conference on Private International Law, "A Preliminary Report on the Issues Arising in Relation to International Surrogacy Arrangements," Preliminary Document no 10 (March 2012) passim.
30. Priya Shetty, "India's Unregulated Surrogacy Industry" (2012) 380 The Lancet 1633.
31. See BC Ministry of Attorney General, Justice Services Branch, Civil Policy and Legislation Office, White Paper on Family Relations Act Reform: Proposals for a New Family Law Act (Victoria: Government Printing Office, July 2010)
32. and Jenni Millbank, "From Alice and Evelyn to Isabella: Exploring the Narratives and Norms of 'New' Surrogacy in Australia" (2012) 21 Griffith Law Review 101.
33. In Busby and Vun, supra note 3, all peer-reviewed empirical studies in English on surrogate mothers' experiences were reviewed. These studies were conducted in the United States, Britain, Canada, and New Zealand. Studies that have taken place since that research was completed continue to support this conclusion. See, for example, Amy May and Kelly E Tenzek, "Seeking Mrs Right: Uncertainty Reduction in Online Surrogacy Ads" (2011) 12 Qualitative Research Reports in Communication 27;
34. Susan Golombok et al., "Families Created through Surrogacy: Mother-Child Relationships and Children's Psychological Adjustment at Age 7" (2011) 47 Developmental Psychology 1579;
35. Vasanti Jadva et al., "Surrogacy Families Ten Years On: Relationship with the Surrogate, Decisions over Disclosure and the Children's Understanding of Their Surrogacy Origins" (2012) 27 Human Reproduction 3008. However, exploratory qualitative research now emerging on Indian surrogate mothers does not support this conclusion.
36. Nadimpally Sarojini, Vrinda Marwah, and Anjali Shenoi, "Globalisation of Birth Markets: A Case Study of Assisted Reproductive Technologies in India" (12 August 2011) 7 Globalization and Heath 27.
37. JAW v JEW, 2010 NBQB 414, [2011] WDFL 2307 at para 22 [JAW], citing in support AA v BB, 2007 ONCA 2, 278 DLR (4th) 519 at para 14 [AA] and referring to Trociuk v British Columbia (Attorney General), 2003 SCC 34, [2003] 1 SCR 835.
38. For a thorough review of presumptive and judicially ordered parentage and the effects of legal effects of parentage, see Roxanne Mykitiuk, "Beyond Conception: Legal Determinations of Filiation in the Context of Assisted Reproductive Technologies" (2001) 39 Osgoode Hall Law Journal 771;
39. Richard F Storrow, " 'The Phantom Children of the Republic': International Surrogacy and the New Illegitimacy" (2012) 20 American University Journal of Gender, Social Policy and the Law 561 at 568-86.
40. Uniform Child Status Act (August 2010), Uniform Law Conference of Canada, Civil Law Section, online: Uniform Law Conference of Canada 〈http://www.ulcc.ca/en/2010-halifax-ns/573-civil-section-documents-2010/ 810-uniform-child-status-act〉.
41. See, for example, Law Reform Commission of Nova Scotia, The Legal Status of the Child Born Outside of Marriage in Nova Scotia, Discussion Paper (August 1993), online: Law Reform Commission of Nova Scotia 〈http://www.lawreform. ns.ca/Downloads/Status-DIS.pdf〉;
42. On the complexity and sometimes contested legal nature of customary adoption within indigenous legal traditions, see Cindy L Baldassi, "The Legal Status of Aboriginal Customary Adoption across Canada: Comparisons, Contrasts, and Convergences" (2006) 39 University of British Columbia Law Review 63.
43. British "parental orders" grant parentage. See text under heading "Parental Orders in Britain" later in this article. Australian law has "declarations of parentage," "parenting orders," and "parentage orders relating to the transfer of parentage." See text under heading "Parentage Orders in Australia" later in this article. "Parenting orders" can cover residence, contact, or parental responsibility, but they do not transfer parental status. See Helen Rhoades and Susan B Boyd, "Reforming Custody Laws: A Comparative Study" (2004) 18 International Journal of Law, Policy and the Family 119 and contrast the reasoning in Dudley and Anor, infra note 100, with Ellison, infra note 99 on when this order is appropriate under Australian law for foreign-surrogate-born children.
44. In comparison, see WJQM v AMA, 2011 SKQB 317 (available on CanLII) [WJQM]
45. a case where two fathers were registered on a birth certificate for their daughter who was born to a surrogate mother. The court found that "pursuant to s 4 of The Vital Statistics Act, 2009, the registration of this information [the fathers' names] creates a rebuttable presumption that the child's birth occurred in accordance with the information provided. In other words, there is a presumption that the persons named as the mother and/or father are the child's parents" (at para 9). Note too that Québec has adopted the unique concept of a "parental project," which is supposed to establish parentage in a birth mother and her lesbian partner simply through relationship and intention. However, as Robert Leckey describes in "Lesbian Parental Projects in Word and Deed" (2011) 45 Revue Juridique Thémis 315, the absence of any formal act establishing parentage, may raise more problems than it solves.
46. GKD Crozier and Dominique Martin, "How to Address the Ethics of Reproductive Travel to Developing Countries: A Comparison of National Self-Sufficiency and Regulated Market Approaches" (2012) 12 Developing World Bioethics 45;
47. Alison Bailey, "Reconceiving Surrogacy: Toward a Reproductive Justice Account of Indian Surrogacy" (2011) 26 Hypatia 715.
48. Zeynep B Gürtin, "Banning Reproductive Travel: Turkey's ART Legislation and Third-Party Assisted Reproduction" (2011) 23 Reproductive BioMedicine Online 555 at 561.
49. Cosima Marriner, "Booming Surrogacy Demand Sparks Exploitation Fears," Sydney Morning Herald (2 September 2012), online: Sydney Morning Herald 〈http://www.smh.com.au/national/booming-surrogacy-demand-sparks- exploitation-fears-20120901-25742.html〉, citing statistics from the Australian Department of Citizenship and Immigration.
50. "Thai Police Free Women from Surrogate Baby Ring," AFP (24 February 2011), online: Google News 〈http://www.google.com/hostednews/afp/ article/ALeqM5gXBt7gEuqdnil4KYH2zcvjZvsFpQ?docId=CNG. e4206a773b164839c18a6b3802794fe5.6d1〉.
51. Centre for Social Research, supra note 7 passim; Shetty, supra note 10. Indian surrogacy law is governed by the National Guidelines for ART Clinics (2006) and guidelines issued in 2008 by the Indian Council of Medical Research under the Ministry of Health and Family Welfare. See Usha Rengachary Smerdon, "Birth Registration and Citizenship Rights of Surrogate Babies Born in India" (2012) 20 Contemporary South Asia 341. The Assisted Reproductive Technology (Regulation) Bill 2010 has not yet been made into law.
52. See Katherine Drabiak-Syed, "Waiving Informed Consent to Prenatal Screening and Diagnosis? Problems with Paradoxical Negotiation in Surrogacy Contracts" (2011) 39 Journal of Law, Medicine and Ethics 559, where she reviews ethical and legal issues when intended parents try to influence or dictate the relationship between a surrogate mother and her health care provider or when a surrogate mother purports to give up her autonomy.
53. Spanish Ministry of Justice, Directorate General of Registries and Notaries, Official Government Bulletin no 243 (7 October 2010). See also Esther Farnós Amorós, "Inscripción a España de la Filiación Derivada del acceso a la Maternidad Subrogada en Califórnia: Questiones que Plantea la Resolución de la DGRN de 18 de Febrero de 2009"2010.
54. 1 InDret [English translation available "Registration in Spain of Affiliation Resulting from Access to Surrogate Motherhood in California: Questions Raised by the Resolutation of the 'Direción General De Los Registros y Del Notariado' of February 18, 2009," online: Social Science Research Network 〈http://papers.ssrn.com/sol3/papers.cfm?abstract-id= 1555636〉).
55. Yukari Semba et al., "Surrogacy: Donor Conception Regulation in Japan" (2010) 24 Bioethics 348 at 350.
56. Citizenship Act, RSC 1985, c C-29, ss 2(1) [sub verbo "child"], 3(1).
57. Australian Citizenship Act 2007 (Cth);
58. British Nationality Act 1981 (UK), c 61.
59. See, for example, this sampling of media reports. Canada (see Aulakh, supra note 5); Iceland ("India's Icelandic Surrogate Baby Due Home Soon," IceNews (29 January 2011), online: Ice-News 〈http://www. icenews.is/2011/01/29/indias-icelandic-surrogate-baby-due-home-soon/〉);
60. and Norway (Sumitra Deb Roy, "Norwegian Stuck in Limbo with Twins Not Genetically Her Own," Times of India (21 July 2010), online: Times of India 〈http://articles.timesofindia.indiatimes.com/2010-07-21/mumbai/ 28288884-rfseq 1-rfseq surrogacy-norwegian-embassy-clinic〉).
61. Semba et al., supra note 34 at 350, describes Japanese cases. For accounts involving Japanese intended parents and German intended parents, see, respectively, Baby Manji Yamada v India (2008) (Sup Ct India): Indian Kanoon 〈http://indiankanoon.org/doc/854968/〉
62. and Yasmine Ergas, "The Transnationalization of Everyday Life: Cross-Border Reproductive Surrogacy, Human Rights and the Re-visioning of International Law," Columbia University Institute for the Study of Human Rights (12 March 2012 ), online: 〈http://hrcolumbia.org/gender/papers/ ergas-transnationalization.pdf〉 [unpublished manuscript], which recounts the saga of twins born to an Indian surrogate commissioned by a German couple (genetic father, anonymous egg donation) left stateless and stranded in India by the operation of incompatible attributions in German and Indian citizenship and parentage laws.
63. Ibid at 566; Aristides N Hatzis, "From Soft to Hard Paternalism and Back: The Regulation of Surrogate Motherhood in Greece" (2009) 8 Portuguese Economic Journal 205.
64. Québec Civil Code, Art 541 CCQ.
65. Compare Adoption - 091, 2009 QCCQ 628 (where the application was denied) with Adoption -09184, 2009 QCCQ 9058; Adoption - 09367, 2009 QCCQ 16815; Adoption - 10330 2010 QCCQ 17819; and Adoption 10329, 2010 QCCQ 18645 (four cases where an adoption was permitted). See Louise Langevin, "Réponse jurisprudentielle à la pratique des mères porteuses au Québec; Une difficile réconciliation" (2010) 26 Canadian Journal of Family Law 171.