FAQ on Ontario’s Bill 28, the “All Families Are Equal Act”
- How will Bill 28 affect me and my family?
- Are “natural families” and “natural parents” really so important? What about adoptive parents?
- Isn’t the main purpose of the bill to simplify the process for both partners in a same-sex couple to be recognized as parents?
- Bill 28 facilitates having children through surrogacy. What’s the problem with that?
Isn’t the main purpose of the bill to simplify the process for both partners in a same-sex couple to be recognized as parents?Currently, if a same-sex couple wishes to have a child that is legally recognized as the child of both of them, they can either adopt a child together or one of the two can be the biological parent of a child with a third party. In the latter case, the non-biological parent of a same-sex couple has to apply to a court to be recognized as a legal parent, effectively legally adopting the child. Also, when a birth is registered in Ontario, the law requires parents to list a mother and a father. This means that same-sex couples cannot both be listed on the birth certificate. With opposite-sex couples, conversely, the child’s mother’s husband or common law partner is presumed to be the child’s father, unless evidence is presented to the contrary. Both mother and father can be listed on the child’s birth certificate. The differences are derided by some as discriminatory and unjust. In our view, however, the differences arise not from any irrational animus towards or mistreatment of LGBT persons, but from the real differences between opposite and same-sex couples and the reality that every child has a biological mother and father. One or both of the partners in a same-sex relationship must inevitably be an adoptive parent. If the goal were simply to save same-sex couples the cost and inconvenience involved in having both partners recognized as legal parents, Ontario could simplify adoption procedures and provide additional support for parents going through that process. But Bill 28 goes way beyond making things easier for same-sex couples. In fact, as explained elsewhere, it makes couples (opposite-sex or same-sex) far less important in family law overall, opening up alternative contract-based “families” between multiple parties who are not in a committed relationship or related by blood.
Surrogacy contravenes European and international law. The sheer number of laws it violates is staggering: the Charter of Fundamental Rights of the European Union (2000), the Convention on the Rights of the Child (1989) and its Protocol on the Sale of Children (2000), the Conventions on the Elimination of all Forms of Discrimination Against Women (1979), on the Adoption of Children (1967 and 1993), on Human Trafficking (2005), and on Human Rights and Biomedicine (1997). All of these documents place human dignity (as opposed to the commoditization and objectification of the human body) at their heart and outline the superior interest of children to know their origin and identity.Surrogacy under Bill 28 will likely cause substantial confusion and conflict. Many persons might claim parental rights with respect to a child born out of a surrogacy agreement under Bill 28: the surrogate mother, the genetic mother (egg donor), the husband or common law partner of the surrogate mother (presumptions of paternity), the genetic father (sperm donor), and the four “intended parents” signatory to the surrogacy agreement. Bill 28 encourages surrogacy and facilitates the establishment of families through “surrogacy agreements” with up to five parties – four “intended parents” plus the surrogate. This new form of family, which has no couple in a committed relationship at its core, depends on women agreeing to be “breeders”. Other countries such as France, Finland, Iceland, and Germany, completely prohibit surrogacy, recognizing that even altruistic surrogacy can be exploitative and lead to serious conflict. Quebec law does not recognize surrogacy arrangements and does not enforce surrogacy contracts. France does not allow people who arrange to have a child through a surrogate to be recognized as the child’s parents at birth or to adopt the child. Ontario would do well to at least have a legislative committee study why some jurisdictions have prohibited surrogacy while others have permitted and regulated it.
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