The Health Care Consent Act contains a nice little list that ensures every single person has a clearly defined substitute decision-maker. When the Act came into force in 1996 it is unlikely anyone thought about how the word “parent” could ever become a point of confusion.
Fast-forward twenty years and many children these days are carried and delivered by surrogates. This introduces legal confusion because the health practitioner proposing the treatment for the child needs to know who the “substitute decision-maker” is in order to obtain informed consent.
Fortunately, disputes are rare and hospital staff usually recognize the “intended parents” (i.e. the people who are going to raise the child) as the substitute decision-makers. This is certainly logical because the surrogate and intended parents decided before the child was even conceived that the surrogate would perform the wonderful favour of carrying the child, but not be a parent after the birth. And the intended parents, or at least one of them, is usually genetically related to the child. While it would be nice if the law were more clear that “parent” refers to intended parents and not surrogates, things do seem to be working just fine in most cases.
That might change soon.
Unless the surrogacy agreement provides otherwise, the surrogate and the intended parent or parents share the rights and responsibilities of a parent in respect of the child from the time of the child’s birth until the child is seven days old, but any provision of the surrogacy agreement respecting parental rights and responsibilities after that period is of no effect.
This suggests that surrogates would by default be recognized as the child’s substitute decision-maker for 7 days despite the fact that the surrogate has no intention to be a parent to the child; the surrogate will not be bringing the child home with her; and the surrogate will not be changing the child’s diapers, introducing the child to her loved ones, staying up all night with the child, or doing any of the usual things a parent of a newborn does. In fact, it is likely the surrogate has children of her own and is eager to leave the hospital as soon as possible after the birth.
And yet hospital staff might be obligated to contact her to obtain consent to treatment while the actual parents are right in front of them.
The Bill does allow that a surrogacy agreement could “provide otherwise” so that only the intended parents have the rights and responsibilities of a parent in respect of the child. But how is the hospital to know what the agreement says? Might hospital staff feel obligated to ask for copies and have their front line staff interpret surrogacy contracts? Health care providers should not be put in that position. Not only would it be absurd due to their lack of legal training, but it would waste our busy health care professionals’ time, it would not be in the best interests of the child and it would be a violation of the rights of all parents who can only achieve parenthood through surrogacy.
In addition to being impractical, the proposed language defeats the very purpose of the Bill.
Bill 28 is referred to as the “All Families Are Equal Act” and yet it treats parents who require a surrogate to have a child differently from parents who do not require a surrogate.
Bill 28 should be amended to state that intended parents are their children’s substitute decision-makers from the moment of birth. That would uphold the spirit of this bill and advance the purported goal of making all families in Ontario truly equal.
UPDATE: BILL 28 PASSED ON DECEMBER 5, 2016