Parenthood has historically been viewed as a convention that is incongruous with the Lesbian Gay Bisexual Transgender Queer Plus (“LGBTQ+”) community, yet an increasing number of LGBTQ+ couples are broadening their relationships to include parenthood. Up until the recent legislative reform, which led to the All Families Are Equal Act ("AFAEA"), LGBTQ+ parent families outpaced legal definitions. This organically transpired as the laws in Ontario represented an outdated ideology that families consist solely of heterosexual couples raising biologically related children. As this change continues to become more prevalent through assisted reproduction and gestational surrogacy, social norms regarding parenthood, gender identity, and trans-inclusivity will continue to evolve as well. The traditional definition of “family,” that of a two-parent household, no longer correlates to the lived experience of many LGBTQ+ families in modern society.[i]
Background: Parentage Policy in Ontario
Parentage policy, which is determined by provincial legislatures, refers to “the rules concerning the procedures and eligibility requirements used to determine legal parenthood for children born through assisted conception or surrogacy.”[ii] Previous laws made traditional assumptions about families that allowed for the potential exclusion of LGBTQ+ families. However, with the growing number of LGBTQ+ families in conjunction with the diverse means and use of assisted reproduction, these assumptions have come under scrutiny and have been subject to a number of judicial challenges. [iii]
In Rutherford v. Ontario[iv] the Applicants were same-sex parents whose children were conceived through anonymous donor insemination. The Applicants sought to include the particulars of both parents on their child's Statement of Live Birth. The Vital Statistics Act (the "VSA") made this impossible as it only allowed the listing of one mother and one father. As a result, they brought an Application claiming that they were entitled to the registration of accurate particulars of their families under the VSA and a declaration of parentage pursuant to the Children's Law Reform Act, (the "CLRA"). The Applicants urged the court to use a modern interpretation of both statutes to accomplish these ends. In the alternative, they asked the Court to exercise its parens patriae jurisdiction to protect the best interests of children born into families with same-sex parents. Further to this, they submitted that if the statutes did not allow for the relief sought, the VSA would be unconstitutional as it violated ss. 7 and 15 of the Canadian Charter of Rights and Freedoms (the "Charter").[v]
The guarantees of life, liberty, and the security of a person afforded by s. 7 are not to be taken lightly. Equality under the law, as well as equal protection and benefit of the law afforded by s. 15, make it clear that everyone must have the same access to the law. The existing legal status quo was prejudicial to the Applicants given that biological fathers of children conceived through reproductive technology were permitted to have their names listed on Statement of Live Birth, but by the same Act, this right did not extend to non-biological parents. Therefore, the Applicants were denied the equal benefit of the law when they were denied presumptive proof of parentage. Same-sex co-mothers who planned pregnancy with a spouse using reproductive technology were excluded by the language of s. 9[vi] of the VSA. The provisions in the VSA were discriminatory on the basis of sex and sexual orientation.