09/10/2011 09:26 EDT | Updated 11/10/2011 05:12 EST

Gay couple wins right to amend child's birth record

A same-sex couple in Saskatchewan have successfully won the right to have the name of the woman who carried their child removed from their daughter's birth certificate.

In a judgment published to an online legal database this week, the couple — identified only as John and Bill — won court approval to list John as their child's father and Bill as an "other parent."

According to the judgment, the couple had entered into a contract with a woman — Mary — who agreed to carry a child for them.

"Mary underwent in vitro fertilization of an embryo created by using the sperm of the petitioner, John, and ova from…an anonymous donor," Judge Jacelyn Ann Ryan-Froslie of the Saskatchewan Court of Queen's Bench wrote in her decision. "As a result of that procedure, Mary gave birth to Sarah, on Aug. 5, 2009 in Saskatchewan."

When it was time to fill in Sarah's birth registration, John was listed as the father and Mary was noted as the mother.

Bill was included on the registration form as an "other parent".

The judge examined Saskatchewan's Vital Statistics Act and found there is a provision allowing for changes to a child's birth record, "if a court of competent jurisdiction makes a determination of 'parentage' with respect to a child."

The judge said although Sarah was delivered by Mary, the woman was not the child's biological mother and did not have anything to do with raising the girl. "Sarah has lived with the petitioners [John and Bill] and they have been solely responsible for her care and upbringing," the judge said. "Mary attests that she does not view herself as Sarah’s mother and supports the petitioners’ application to remove her name from that designation on Sarah’s registration of live birth."

With that, the judge ordered that a change to the birth certificate was in order.

"Mary, the gestational carrier, is not Sarah’s biological mother," the judge said. "I am also satisfied neither the applicants nor Mary ever intended that Mary would assume any parental rights or obligations with respect to Sarah. As such, a declaration that Mary is not Sarah’s mother is warranted."

Saskatchewan's registrar of vital statistics was ordered to amend Sarah’s registration of live birth accordingly.