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Same-sex couple can take surrogate's name off daughter's birth certificate

09/12/2011 07:13 EDT | Updated 11/12/2011 05:12 EST
SASKATOON - A same-sex couple in Saskatchewan is relieved after winning the right to take the name of the woman who delivered their daughter off the child's birth certificate.

Queen's Bench Justice Jacelyn Ann Ryan-Froslie recently ruled that the woman, identified only by the pseudonym Mary, was only a surrogate using donated ova from another anonymous woman and sperm from one of the men. Mary gave birth to Sarah in August 2009.

At issue was the Vital Statistics Act, which defined mother as the woman who delivered the child.

"Naming her as Sarah's mother on the registration of live birth raises a presumption that she is also Sarah's biological mother," wrote Ryan-Froslie.

"In this case, I am satisfied on a balance of probabilities that Mary, the gestational carrier, is not Sarah's biological mother. 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."

The ruling means the two men can be listed on the birth certificate as father and other parent.

Ryan-Froslie noted Mary supported the application to remove her name from the certificate.

The judge said there is no case law in Saskatchewan with respect to the removal of a mother's name from a child's registration of live birth where that mother is a gestational carrier.

The issue, however, has been dealt with by courts in other jurisdictions. Ryan-Froslie cited an Ontario case where a woman underwent in vitro fertilization of an embryo created from an applicants ova and sperm. After the child's birth, the applicants applied for a declaration that the woman was not the child’s mother and a judge granted the request.

Lawyer Richard Gabruch, who represented the men, said they are relieved.

"It's been a bit of a long, drawn out process and the court was charting, I wouldn't say they were charting a new course but they were treading in water that they're not usually treading in," said Gabruch.

"It was an unusual application so it did take some time and fortunately, I think we got the result that the clients were hoping for."

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