Being named as a parent on a baby’s birth registration is not the same thing as being legally declared a parent by court order. In the world of reproductive technology, this should be kept in mind — especially if you want to make sure you truly are a parent in the eyes of the law.

This was illustrated recently in a hotly-contested English lawsuit, but the same principle exists in Ontario. The case involved a lesbian couple. The bio-mother was artificially inseminated at a clinic. She wanted her partner, with whom she had been in a relationship for thirteen years, to fully participate in their new family. (Twin boys were the result.) In bio-mom’s words: “I wanted her to be as happy as I was about this parenthood, and feel included. That was my motivation.”

The relevant English statute, known as the Human Fertilisation and Embryology Act, had recently been changed to allow a “second woman” in a same-sex relationship to become a “parent” of a child (or children) born to her partner, provided that both women agreed. One way to do this in England is to fill out forms at a fertility clinic. Accordingly, bio-mom downloaded the forms from the Internet. She and her partner signed.

Unfortunately, a year-and-a-half later, the relationship broke down. Bio-mom wanted her partner to go away and not have anything more to do with the children. The partner was not pleased. So she brought a lawsuit seeking to confirm her status as a parent. She failed.

The court ruled that when the bio-mom downloaded and signed those forms, she did not understand what she was getting herself into. There was no “informed consent” on her part.

It is tempting to imagine that bio-mom was merely playing dumb after the fact. In any event the court found sufficient evidence, in these particular circumstances, to conclude that informed consent was lacking.

For one thing, the forms were signed in what can only be described as a rushed and slipshod manner. After having downloaded and printed them, bio-mom chose an odd moment to take the forms out of her bag and sign them with her partner: she had just been inseminated, and was under instructions to remain “supine” on the bed for fifteen minutes in order to allow the sperm to stay in place and fertilize her. In the eyes of the court, this was not the ideal atmosphere for someone to fully and properly contemplate legal ramifications.

Indeed, the English regulations and protocols about how parenthood forms are supposed to be signed at a fertility clinic are quite strict, and several of them had been breached in this case. For instance, proper counselling about the implications of fertility treatment is supposed to be provided – it wasn’t. Also, in order for the parties to “digest” the information, the forms are supposed to be signed the day before the treatment is done – obviously, they weren’t.

Indeed, even the partner who brought the lawsuit against bio-mom acknowledged that “while the clinic staff had been good at answering their questions about the medical procedures (catheterization, etc.), no one had taken time out with them to discuss the issues around legal parentage.”

Having regard to the totality of the evidence in this case, it does seem reasonable to conclude that there was no informed consent. Indeed, long after the fact, at the trial, the court noted that “neither party had any real understanding, even in the witness box” as to the significance of what legal parentage means.

It means a lot, the court emphasized. For example, it confers rights relating to access with and residence of the child; it brings obligations regarding child support; it gives the child rights of inheritance; it gives a “parent” the right to bring and defend legal proceedings about the child; and it “makes the child a member of that person’s family.”

After concluding that there was no informed consent here, the court slapped the non-bio-mom with a declaration of non-parentage, noting that she could still sue for access (“contact,” in the parlance of England) if she so desired. To add insult to injury, the court also deleted her name from the birth registration.

Arguments were made at the trial to the effect that the parties’ intent at the time of birth should trump any deficiencies with regard to informed consent. No, said the court — presumably because it’s hard to establish intent when the bio-mom claims she didn’t understand what she was doing.

While the law in England is not the same as the law in Ontario, the principle is important. If you want to be sure that you are indeed a legal parent, don’t simply rely, in an assisted reproductive technology arrangement, on being named a parent on the child’s birth registration. Go to court and get a legal declaration of parentage.

 

Bill Rogers is a Toronto lawyer and blogger covering family law and fertility law issues, and a columnist for the Medical Post covering the law of malpractice. He can be contacted at www.rogersfamilylaw.com

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