The decision of Justice Clifford Nelson M.D. v. L.L., 2008 CanLII 9374 (ON S.C.) provides a remarkable, and carefully reasoned, review of the law relating to surrogate parents. The decision is likely to be relied on for some time as the issue of who is the "parent" of a child becomes clouded with reproductive technology, making the birth mother not necessarily the genetic mother.
The facts are fairly straightforward, albeit somewhat reminiscent of a science fiction novella. M.D. and J.D. are a married couple. M.D. is unable to bear children due to medical reasons. They had a family friend, L.L., who is able to bear children. L.L. was willing to act as a surrogate mother. L.L. is married to I.L.
M.D. and J.D. entered into a "Gestational Carriage Agreement" with L.L. and I.L. in November, 2006. Under the agreement, L.L. agreed to act as a gestational carrier for M.D.'s ova, which had been fertilized with J.D.'s sperm. The applicants would thus be the genetic parents of any child that was born as a result of this procedure.
In the summer of 2007 L.L. gave birth to a child, E.D. After the child's birth, a Statement of Live Birth had to be completed and filed with the Registrar. That statement required that L.L. place her name on the form as the mother of E.D., notwithstanding the agreement and the fact that the applicants are E.D.'s genetic parents.
M.D. and J.D. sought orders declaring themselves to be the parents of E.D. and declaring L.L. and I.L. to be not the parents of E.D.
The Court, after a detailed consideration found it had the jurisdiction to make the orders sought and, on the facts, such order should issue. In effect, the Court found (despite a statutory definition defining 'mother' by reference to birth) that the genetic parents were the 'true' parents. The decision is likely to be the locus classicus for surrogate parenting litigation in the future.
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