Nobody's Child, Everybody's Children:

National Study Of Canadian Provincial and Territorial Legislation Relevant to the Separation of Genetic and Gestational Motherhood

In creating the opportunity for genetic, gestational, and social mothering to be separated in a manner previously unknown in human society, assisted human reproduction (AHR) presents new problems for law and medicine. By engendering uncertainty as to who will be regarded as the legal mother and father of a child, AHR can create situations in which the locus of parental decision-making is not known. When healthy children issue from these practices, legal and ethical problems can remain. But when a newborn is discovered to be unwell, AHR adds legal and ethical complexity to a case that is already medically serious. Moreover, when individuals surrender gametes with the intention of never seeing, let alone establishing a relationship with, their offspring, they can inadvertently make it difficult for physicians to take an accurate medical history and therefore properly treat patients. 

As a consequence, the legal and ethical aspects of AHR can have a profound effect on newborns, mothers, and all other parties involved.

Although Canada’s federal government attempted to regulate AHR in 2004 with the Assisted Human Reproduction Act, questions regarding maternity and paternity were outside that government’s jurisdiction. By examining relevant statutory and case law, this study attempts, inter alia, to state who would be considered the mother and the father of a child born under either a preconception arrangement (“surrogate motherhood”) or ovum donation in each of the provinces and territories of Canada.