Thanks to a comment on the last post, I came upon this report of a very recent decision in Saskatchewan. John and Bill (all names are pseudonyms) are a gay male couple who wanted to raise a child. John provided sperm that was combined with an egg from an anonymous third-party. The resulting pre-embryo was transferred to Mary and in August 2009 Mary gave birth to Sarah.
This was a case where all went according to plan. Thus it was intended by all parties from the beginning that John and Bill would raise the child and everyone stuck with that understanding. So it’s gratifying and not terribly surprising that in the end John and Bill are recognized as the parents. There are no other competing candidates. (This distinguishes it from a lot of surrogacy litigation, where there are either too many people competing for the title of legal parent or, on occasion, too few.)
So if everyone was on the same page, you might wonder what there was to be litigated. If you read the story you’ll see that the issue was what was to be listed on the birth certificate. In particular, does Mary’s name appear? The answer reached by the court is “no.”
Now there have been long discussions on this blog about birth certificates and you might want to go review a little bit of that, because I’m going to assume some familiarity with the main points. In a nutshell, at least in the US birth certificates are NOT records of historical fact in all regards. When an adoption is complete, a new birth certificate is routinely prepared and the names of the adoptive parents will be entered on it. You might not like this–you might want to change this (that’s a different discussion)–and that is fine, but it is standard practice for now. I am not sure that the law is the same in Canada–perhaps someone from there can fill us in. But I’m going to assume it is for the moment.
That said, I am not troubled with the ultimate answer. I do, however, care about the path the court took to get there. As I understand it the court concluded that Mary was never the child’s mother and thus, her name should not appear on the birth certificate. It strikes me that this has the effect of making the pregnancy/birth inconsequential. It’s been a long time since I wrote about that, but this approach troubles me deeply.
It also seems to me that the conclusion that the court reached determines the outcome of all subsequent gestational surrogacy cases. If Mary was never a mother than no other gestational surrogate will be either. (Gestational surrogacy is what it is called when the woman who is pregnant is not genetically related to the embryo. I’ve written about this before, too.) I’m not persuaded that this case–where all the parties agree on the outcome–is the right vehicle to determine that question.
Which brings me to the alternative route. Since everyone agrees it seems like there should have been some way for Mary to renounce any parental rights she might have (without quite saying what they were) in favor of Bill. I have no idea whether Saskatchewan law has any provisions that might allow this, but perhaps a creative lawyer could have found a way to serve the ends of the people involved without taking this problematic route.