Manitoba says it will amend parental rights law judge found discriminates against LGBTQ families

The government of Manitoba has announced coming changes to legislation that will give parents who conceived children through assisted reproduction legal status, after a judge called parts of the act unconstitutional.

But two of the parents who were part of the court challenge that led to the change say they're worried the province won't meet the court-ordered deadline to make the amendments.

The amended Family Maintenance Act will include changes to provisions on parental rights related to assisted reproduction with or without a surrogate, the province said in a news release on Wednesday.

The amended act will also include requirements for surrogacy agreements before a child is conceived, processes for surrendering the child to the intended parents and exceptions where a surrogate does not consent to surrender the child.

The province's news release said the amendments "will be introduced at the earliest opportunity when the legislature resumes."

In a separate announcement, the province said Wednesday the next legislative session will begin Nov. 23.

That's two weeks after a court-ordered deadline to make the changes.

Legal challenge

Following a legal challenge last year by seven Manitoba couples, Court of Queen's Bench Chief Justice Glenn Joyal ruled that sections of the Family Maintenance Act violated the right to equality guaranteed by the Canadian Charter of Rights and Freedoms. 

The legislation forced non-biological parents to go through court processes to be legally recognized as parents.

In a consent order delivered on Nov. 9, 2020, Joyal wrote that the definition of "parent" in the act discriminated against LGBTQ couples, because it did not "contemplate parentage through assisted human reproduction and therefore discriminate[d] on the basis of sexual orientation."

Joyal gave the government one year — until Nov. 9, 2021 — to pass new legislation.

The provisions in the legislation that he considered discriminatory were declared invalid and have been suspended for the last 12 months.

Jill Stockwell and Courtney Maddock were among the couples who were part of the legal challenge.

The women co-parent their daughter, CJ. When she was born, Stockwell wasn't legally considered a parent.

Stockwell said her legal status really hit home last Mother's Day, several months after Joyal's decision.

"That meant a lot to me, and I really want that for the other parents out there who have been waiting for this Nov. 9 deadline. And unfortunately, it doesn't sound like they're going to get that same feeling that I got last Nov. 9," she said in an interview with CBC News on Wednesday.

Maddock said most other people who have kids are considered parents as soon as their child is born.

"Even though you're both equal parents, the law right now doesn't doesn't see it that way ... the biological parent is the parent and the other parent is just kind of there," she said.

"This legislation will fix that … [so] that, like many other parents, they're naturally assumed parents as soon as the child is born — and that's not the case for parents like us [now]."

'Lack of understanding' of legislation's importance

CBC News has asked the province for comment about the status of this legislation and whether it will meet the Nov. 9 deadline.

In Wednesday's news release, Justice Minister Cameron Friesen said "the legislation was not intending to discriminate," but "it simply did not keep up with changes in reproductive technologies."

That led to situations "where the law has become challenging to navigate for anyone using assisted reproduction to become a parent," he said.

Nahanni Fontaine, the Opposition NDP MLA for St. Johns, said in a statement the province should have made the changes earlier rather than "pushing bills no one wanted, like Bill 64," the now-defunct education overhaul bill.

"The PCs have missed their own court-ordered deadline to get this important legislation passed," she said. "Government should be focused on helping families but the PCs are just too out of touch to get it right."

Legal parentage affects a number of areas in a child's life, including citizenship, health-care decisions, custody in the event of separation and inheritance rights.

Many other provinces have updated similar pieces of legislation to include assisted reproduction, including Ontario, Saskatchewan, Alberta, British Columbia, Nova Scotia and Prince Edward Island, the province says.

Stockwell and Maddock want to see the changes take affect as soon as possible, saying the delay is hurtful to families who received reproductive assistance.

"I think it shows that there's a lack of understanding of how important this legislation is to families like ours," Stockwell said. 

"We need to keep pushing them to do the right thing, and we're hopeful that they'll do that in the very near future."