Manitoba law forces parents to adopt own child if using a birth surrogate

Forcing parents to have to adopt their own child seems punishing after they’ve already had to deal with infertility issues and the surrogate process.
Forcing parents to have to adopt their own child seems punishing after they’ve already had to deal with infertility issues and the surrogate process. (Photo: REUTERS/Regis Duvignau)

Some current Canadian laws are so outdated that their very existence causes nothing but headaches. The Manitoba law on parental rights when using a surrogate is almost certainly one of them.

Surrogacy is an alternative for a couple to have a child if they are unable to conceive. The surrogate is a woman who will carry the child for the couple with the goal of giving the baby to the intended parents after he or she has been born. The child usually carries the genetic material of one or both of its intended parents.

In Manitoba, using a surrogate is problematic, because even if the couple are the biological parents of the child the surrogate is carrying, the baby isn’t really considered their child until they adopt him or her or unless they declare parentage. Declaring parentage means their names are added to the birth certificate of the child but the surrogate's name remains on the certificate as well.

That is because the provincial government defines a child’s mother as: “the woman who carried and delivered the child. This applies whether or not she has a genetic link to the child and whether or not she will have custody of the child.” The father is considered the person married to the surrogate.

Such was the case for Manitoba residents Tanis Mauws and Sean Lancaster. Mauws couldn’t carry a child herself, so they had a family member act as a surrogate. The fertility clinic informed them that they would have to legally adopt their son despite being the biological parents, or else they would have few rights to the child.

This baffled the new parents. "You would just think it's common sense that [with] her egg and my sperm, it would be our child," Lancaster told CBC News.

Forcing parents to have to adopt their own child, or having to declare parentage, seems punishing after they’ve already had to deal with issues of infertility and the surrogate process. Adoption is another difficult process, and it’s a costly and long one. The adoption process can take years and can cost several thousand dollars.

Although the law was to be updated in spring of last year and make it easier for people to claim their own child, the bill never passed thanks to a provincial election and government change.

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