Manitoba parental rights law discriminates against LGBT families, legal filing argues

Sitting with her wife and daughter in their dining room on Saturday, Finn McMahon remembered the nerves she felt as they got ready to welcome their firstborn into the world in January.

McMahon's wife, Emily Sauvé, carried the baby, which was conceived using a friend's sperm. 

"The love came so immediately," she said, as her now-four-month-old teethed on Sauvé's fingers. 

The couple spent years getting to this point, from the talks they had early in their relationship about whether they wanted kids, to the painstaking research into how to make it happen; the 13 rounds of at-home insemination with a first donor to the heartbreaking miscarriage.

But the journey wasn't over with the birth. Because she wasn't a biological parent, McMahon still had to go through a time-consuming adoption process that would cost them thousands of dollars.

"It's really troubling," Sauvé said. "It does feel like a bit shocking that the government's position on the definition of a parent would be so behind."

Now, the couple is one of seven listed on a court filing that argues Manitoba's current legislation overseeing parental rights discriminates against lesbian, gay and bisexual parents and violates their Charter rights to equality under the law.

The notice of application, filed against Manitoba's Attorney General in Court of Queen's Bench on June 11, says the legal definition of a parent under the Family Maintenance Act excludes parents of children who are born through assisted reproduction by making them go through the adoption process.

In an email, a spokesperson for Attorney General Cliff Cullen said as the matter is now before the courts, Cullen "is not in a position to comment."

'Society has changed'

The current law means non-biological parents live in uncertainty and without parental rights until the adoption paperwork has been processed, said Robynne Kazina, the lawyer representing the seven families.

"Imagine being questioned about the right to make medical decisions over your child because, although you've been there every step of the way as their parent — involved in their conception, planning, acted in every way as their parent — you're just not a legal parent under the old, outdated definition," she said.

Changing the law would also benefit children who were conceived using reproductive assistance by giving them certainty in their family and parents with clear legal rights and responsibilities, Kazina said.

"Society has changed and the way families are structured has changed, and it really is the child's right, regardless of their method of conception or how they came into this world, to have security in their family," she said.

The law also has particularly stark implications if something were to happen to the child's biological parent, or if there were to be issues that came up while travelling, Kazina said. And while the issues with the law mostly affects LGBT couples, it also creates barriers for heterosexual couples using assisted reproduction to have a child, she said.

As reproductive technologies advance and more people start using them, the push to modernize the definition of parent in Manitoba is gaining momentum, Kazina said. 

But it's not a new concept. In a 2014 paper, the Manitoba Law Reform Commission recommended the changes the new legal filing is seeking. And other provinces (like Ontario, British Columbia and Saskatchewan) have already updated their laws so parents in those provinces don't face the same barriers they do in Manitoba, Kazina said.

The case, which will decide the fate of families like McMahon and Sauvé's, is expected to be heard in November, Kazina said.