Of Surrogate Mother Born: Parentage Determinations in Canada and Elsewhere

Abstract

This article examines statutory regimes and judicial decisions in Canada on parentage and citizenship for children born to surrogate mothers and compares these laws with those of other countries, especially Britain and Australia. Provincial parentage laws (with the notable exception of Québec) and federal law and policy on citizenship favour an expedited process requiring minimal, if any, judicial or administrative oversight on issues related to exploitation such as free and informed consent or financial arrangements. In contrast, British and Australian processes are more inquisitive, expensive, inflexible, and time consuming. Complicated post-birth parentage and citizenship laws do little to protect women against exploitation because, after the birth, surrogate mothers are almost never reluctant to hand over children to intended parents. As long as a genetic link is established between an intended parent and the child, concerns about child trafficking should also be assuaged. Once a child is born, and absent the rare case where disputes arise between the surrogate mother and the intended parents or where there is no genetic link between the child and an intended parent, it will almost always be in that child’s best interests to establish the child’s parentage and citizenship quickly and with certainty.