Ms Cindy Wasser:

With the emergency being recognised now, those surrogacy arrangements would be acknowledged in Ukraine where birth certificates would have been issued for babies that were being brought back home but because that is not happening now due to the emergency situation of war our government will recognise those children simply by establishing that element of parentage by way of intention.

When I had the privilege of being in Dublin in March, I was on a call with a judge here in Ontario who does our declarations of parentage to ask what she thought the courts might be able to do without legitimate surrogacy agreements established in Canada, perhaps without consents of surrogates who are in danger in Ukraine after giving birth. Her advice was that people will bring the applications to courts - she and the judges in each province will discuss this no doubt – and based on the best evidence available and the best interests of the child, they will make their orders. This means that we may not have paperwork for the babies born in Ukraine and when we bring the surrogates here and they have given birth, we may not have legal surrogacy agreements to establish those relationships but the best evidence by way of affidavit will suggest that those children should belong to their intended parents. Shortly after the government opened the doors to the immigration Act by naming intended parents via surrogacy legal parents of unborn babies only in those circumstances, it did a grand overhaul of the immigration Act to look at other archaic provisions. One was the need to establish the genetic connection of Canadian parents when they went abroad to have a baby. We have seen a number of what I call scandalous situations where intended parents did not realise that and had babies via surrogacy in other countries such as India and Kenya and went through tremendous political hurdles to bring their babies home. Our government thought they should not be punished but that the children needed to be recognised as Canadians and be brought home with their parents and, therefore, it amended the immigration Act a month after the first legislative change to say that parentage in Canada need not be established by genetics but by intention.

I wish to finish answering this by bringing a number of things to attention. Ms Justice O’Hanlon read from a report that spoke to the need for genetics in various provinces of Canada and said that it was only in Ontario and British Columbia that it was not needed. In fact, there are only two provinces, Alberta and Nova Scotia, where it is needed. Every other province has amended legislation to state no genetic connection is required, as has the federal government, which means those provinces, Alberta and Nova Scotia, are ripe for a constitutional challenge. My colleague who will speak to the committee later, and I are actually planning to work on one for Alberta.

As I said, I am a mother through surrogacy. This is a direction, not a ruling or a judgment by the judge who declared me to be the mother of my husband’s children. When I was first told that that is what our law required, I literally hit the roof of this room and said after what I persevered to become a parent, I should not be punished by needing to beg a court to make me that; I deserved a medal. For same-sex couples, their struggle may be different but it is not without the same advocacy and perseverance. The political struggle to be recognised as parents in various countries is enormous. They deserve medals not punishment begging courts to declare them as parents. In my goal to change my practice from criminal law after 30 years to become a fertility lawyer and change the law in Canada I created a process with my favourite criminal judge, Justice Trafford, to declare my children as mine. I wish to quote what he said, which I promise will only take 30 seconds:

It is also appropriate to observe on this occasion that the inherent worth and dignity of all persons is of fundamental importance in a free and democratic society like Canada. All lives, whatever the circumstances leading to their conception, are to be respected and recognised as equal before and under the law. Jennelle, like her sister Etta, is to be respected and is respected as much as any other person. Their lives and all of their potential are no different than the lives of any other person. They are as important to the society we live in and treasure as Canadians as any other person. The rule of law in Canada demands such treatment of them and will facilitate the development of their potential as human beings through proceedings like those before the court today. Indeed it has facilitated it through the many contracts entered into for the purpose of protecting the rights of everyone involved in their births.

Those are the principles that exemplify Canadian values in family making. We do not have genetic connections, we do not inquire into sexual orientation, we do not have status of marriage; all you need to be is an intended parent, aged over 18 of course, and you will be recognised as such.