Dr. Andrea Mulligan:

That is an interesting point. This is a tricky question. Some people are in favour of a post-birth model, which is what is in the proposed legislation. Others are in favour of a pre-birth model. I will explain a little about what a pre-birth model looks like. It is common in US states, for example, Massachusetts, California and possibly Colorado. The people involved go to court and reattribute parentage between them before the child is born. When the woman gives birth, the child is not hers. I have a difficulty with this. A rule has to be made about who is the parent. I have a difficulty with a legal situation, which is the situation in the jurisdictions I outlined, whereby that woman has no legal rights whatsoever in respect of the child to whom she has just given birth. She gives birth just like any woman does and there is no legal relationship between her and the child. She is in a vulnerable position. She is a self-determining autonomous person who has made this decision, but she has gone through what would be a difficult experience in any circumstance. It is problematic for her to have no legal rights to the child whatsoever.

As I mentioned in the briefing document, given our country's history of difficult adoptions and potentially adoptions with a lack of consent, we have to be careful in how we deal with these parentage issues. I am not saying that the intended parents should have no legal rights. The difficult question is who gets the legal rights at the point of birth. A good compromise is that the intended parents have at least some guardianship rights. I see a difficulty with a situation where the birth mother is the mother and the intended parents have no legal rights at all - that is a problem - but a good compromise would be for the intended parents to at least be appointed as guardians, with parentage transferred at a later point. This approach appears to be in the Bill as currently drafted, but it is not terribly clear, so I would like it clarified in the ultimate version of the legislation if it passes.