The arrival of a newborn, normally a source of joy, can sometimes be a source of administrative hassles. For instance, common-law partners...
The arrival of a newborn, usually a source of happiness, can sometimes be a source of administrative difficulties.
Thus, same-sex common-law partners who have been living together for more than six years choose, if they cannot adopt a child, to use a surrogate mother. This surrogate, a friend of the couple, agrees to carry the child conceived through in vitro fertilization using an anonymous egg donor from Ontario and the sperm of one of the partners. After the birth of the child, the biological parent declares the birth to the Director of Civil Status, who issues a birth certificate. The biological parent's name is entered under the "Father" section and the words "Not declared" are entered under the "Mother" section.
Several months pass, and the father signs a special consent for the adoption of the child by his common-law partner. In the following days, the partner files an application with the Quebec Court for an adoption placement order. The court, after hearing from the surrogate mother that she does not want to be listed as such on the birth certificate, rejects the request, concluding that the child has a mother and that she must consent to the adoption.
The common-law partner brings the case before the Court of Appeal*, which overturns the decision because:
- the birth certificate is drawn up in full compliance and corresponds to the reality since the "Mother" section does not indicate "Unknown" but "Not declared";
- the father of a child who is not married to the mother, while she herself refuses to be designated as the mother of the child, cannot establish maternal lineage.
The court reminds that if no one is surprised by the mention of "Father not declared", then why should it be any different when it comes to a similar mention regarding a mother? Even if we believe that children are kings, their kingdom is often weakened by storms. It is perhaps for this reason that the courts have ruled that "the best interest of the child should always prevail."
*C.A. 500-09-024516-148
