Gender-neutral terms, posthumous conception covered in new Act

By April Cunningham, Associate Editor

The gender-neutral terminology enshrined in the new All Families are Equal Act recognizes the diversity of modern families, says St. Catharines family lawyer Sharon Silbert.

The Act, passed unanimously by the Ontario legislature (although half of the Progressive Conservative caucus was absent for the vote), ensures couples who use known sperm donors or a surrogate no longer have to adopt their own children.

“The manner in which a child is conceived now has less of an effect on how they are treated from a legal perspective,” says Silbert, principal of Sharon B. Silbert Professional Corporation.

Silbert tells AdvocateDaily.com the legislation will change the Children’s Law Reform Actthe Vital Statistics Act and 39 other statutes to ensure the partner of a birth parent can be legally recognized as a parent without the need for a court order.

“Previously, if you gave birth to a child and the child was conceived using a known sperm donor and you wanted your spouse to be treated as a parent, he or she would have to go through court to either obtain a declaration of parentage or adopt the child,” she says. “That is no longer the case.”

The new law also allows for up to four people to be recognized as the parents of a child without the need for a court order, one of whom must be the child’s birth parent or a surrogate. In order to obtain parental status, intended parents who will not be genetically related to the child must enter into a written agreement confirming their intention to become parents before the child is conceived and have it independently reviewed by counsel, Silbert says. Surrogates must confirm their consent to give up parental status twice; once before the child is conceived, and then again seven days after the child’s birth.

Another interesting feature of the new law is that a court can grant a declaration of parental status to a deceased person in relation to a child that is conceived after their death, Silbert says.

“The posthumously conceived child will be able to inherit and seek support from their deceased parent’s estate if the child is born within three years of their deceased parent’s death,” according to an Ontario government press release.

Before the death of one intended parent, both parents need to have consented in writing to become the parents of the child who is to be conceived posthumously through assisted reproduction, Silbert says.

“This is probably intended to cover situations where a couple is wanting to conceive a child together and one parent has a limited life expectancy, for example,” Silbert says.

Unlike other areas covered by the new legislation, the posthumous conception amendment requires a court to make the declaration of parentage, she says.

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