Measuring parentage policy in the Canadian provinces: A comparative framework

Abstract

This paper develops a framework to measure parentage policy based on the legal barriers faced by intended parents, taking into account eligibility requirements, rules for genetic relationships, and surrogacy contract enforceability. It then applies this framework to the Canadian provinces. While parentage policy in Canada is undoubtedly a patchwork, policy change has moved in an increasingly permissive direction, often as a result of litigation. Moreover, this study provides an opportunity to develop broader research project for comparative scholars of parentage policy. Future studies of parentage policy, building from the framework developed here, should qualitatively examine the role of policy implementers other than legislatures and determine how policy learning and transfer affect parentage policy change. Because parentage policy can provide legal certainty for parents and prevent legal disputes, understanding the factors behind policy change is an endeavour with both theoretical and practical significance.

Canadian Public Policy: The State of the Discipline

“…Canadian policy studies have documented the uneven effects of policy instruments and their settings when it comes "who gets what" in terms of fiscal (Haddow, 2015(Haddow, , 2018Jacques, 2020) and social policies with respect to minimum income protection (Béland and Daigneault, 2015;Haddow, 2014;Noel, 2013Noel, , 2020 and family policies, including for parental leave and child care and education (K. E. Pasolli, 2015;Prentice and White, 2019;Snow, 2016;White and Friendly, 2012). A consistent finding is the uneven treatment of Canadians across provinces, with some provinces taking greater efforts and having more success in reducing economic inequality.…”

Litigating Parentage: Equality Rights, LGBTQ Mobilization and Ontario’s All Families Are Equal Act

“…Parentage policy, which in Canada 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” (Snow 2016, 6–7). Traditionally, provincial law in Canada assumed that the birth mother and her male partner, if any, were the parents of a child.…”

“…By contrast, a 2016 survey of provincial parentage policy found that “most provinces have laws for parentage, both with respect to children born through surrogacy and assisted conception,” and that the judiciary had played a large role in effecting policy change. However, there exists considerable provincial variation in terms of policy restrictiveness, and uncertainty regarding how judicial rulings are being implemented (Snow 2016, 6; see also Harder 2015).…”