Advocates, parents say N.S. needs new, more inclusive, parentage laws

Most people who start families and have children might assume that each parent would be recognized by law and able to make important decisions for the child, such as those pertaining to medical care.

But for families like Krysta Hartlen Côté's, Nova Scotia's current legal framework means that's not the case.

"To not be able to make decisions about your family member in a time of crisis and have red tape because somebody says that your family's not good enough to be counted as a family is an added layer of stress and trauma that is unnecessary," said Hartlen Côté.

Hartlen Côté and her wife Jackie used a sperm donor whose identity was known, with Krysta being the gestational and genetic mother. 

Under Nova Scotia's current rules, that means that Jackie couldn't be named as a mother on the birth certificate. Krysta said their only recourse now is to adopt their own child.

"Because in Nova Scotia, if a married person, my wife, adopts a child, so must their spouse, me," they said. "And it doesn't address the fact that I am the biological and genetic parent of the child." 

Their now three-year-old has complex medical needs and is disabled, but only Krysta is able to make legal decisions for them, including those regarding life-saving measures. 

"God forbid, if something happens to me, we have a really big problem," said Hartlen Côté.

Outdated case law

Under Nova Scotia's current system, a child's mother is considered to be the woman who gives birth and the father is the man who is married to her.

People who don't fit these definitions would not be legally presumed to be the parents at birth and would have to adopt their own child or obtain a blood test proving their biological connection.

Ilana Luther, executive director of the Access to Justice and Law Reform Institute of Nova Scotia, has been studying parentage in the province for three years. 

She said Nova Scotia needs to adopt parentage legislation — laws which would recognize intent rather than biology when determining parentage at birth.

"So if you … intend to conceive a child through assisted reproductive technologies in whatever family form you want, you will be guaranteed to have parentage rights to a child once that child is born," Luther said. 

Luther said it's a "major problem" that Nova Scotia doesn't have laws determining parentage at birth, because parentage allows parents to make medical decisions about a child and dictates aspects like who can consent to adoption, who can be registered on a birth certificate or even a child's inheritance status.

"Parentage is a lifelong, immutable status, so you can't lose [it], for example, unless you … give up your parentage and allow your child to be adopted by another person," Luther said.

Queer lawyer Susanne Litke, who has been working on law reform matters for the last two decades, agreed the province needs a Parentage Act.

"We've been relying on the Vital Statistics legislation which … [is] not about parentage. It's just how you register your birth, your death, your marriage," Litke said.

Different families, communities affected

Other provinces have legislation which define how parentage is accorded for various circumstances such as when people use surrogates, known sperm donors or are in multi-parent families, Litke said.

She said Nova Scotia's lack of parentage laws means a diverse set of families and communities are excluded from parental rights — and can cause particular harm for people in the LGBTQ community, many of whom use sperm donations or other methods to conceive a child.

She said legislation should also be inclusive of other family structures like polyamorous families.

"We have many polyamorous families where … more than two parents are parenting children, and the child sees those parents as their true parents," Litke said. 

Common-law partners are also affected. Luther said if common-law partners used reproductive technologies, and the non-birthing parent dies without a will, their child would not necessarily have inheritance rights under the current system. 

In an emailed statement, provincial spokesperson Rachel Boomer said, "We are not currently considering separate legislation specifically for parentage. We are continuing to consult with groups about changes to the Vital Statistics Act."