'We have to prove he is ours': Manitoba laws give rights to surrogate rather than biological parents
'Archaic' laws were supposed to be updated, but legislation died when provincial government changed
When Tanis Mauws and Sean Lancaster brought their bubbly baby boy Keelan home, all they wanted was to experience the joys of being new parents.
But Manitoba laws meant that Keelan wasn't legally considered their baby.
"[At] one Heartland [fertility clinic] appointment they told us we'd have to adopt our baby," Mauws said.
"Technically, we have no rights."
Keelan was born using a surrogate. According to Manitoba's Vital Statistics Act, that meant not only was the surrogate considered his mother, her husband was legally his father.
"The trickiest part is that our Manitoba law has not changed. It is pretty stagnated and it's pretty archaic," Mauws said.
"In the law it says that whoever gives birth is the mother, and if she is married the husband is the father."
The laws were set to be updated with Bill 33, the Family Law Reform Act. But when the provincial government changed last spring, hopes for the new legislation were dashed.
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'I always knew I wanted to be a mom'
Growing up, Mauws was a normal kid and laughed and played just like her twin sister. When they reached puberty, things changed.
Mauws never started menstruation.
After multiple doctor appointments and a trip to a specialist in Toronto, she finally found out that she had been born without a uterus.
"I always knew I wanted to be a mom," she said. "I never in my mind thought I wouldn't be a mom, I just had to figure out how to get there."
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Years later, when she met Lancaster and things got serious, she had to tell him that carrying a child would never be an option for her.
"I told him pretty early and it was like no big deal. That's how I knew he was the one," she said with a beaming smile.
About four years ago the couple got married, and they knew immediately they wanted to expand their family.
It was one of their wedding gifts that made them start looking at surrogacy.
That was an option, because although Mauws didn't have a uterus, her doctor confirmed she still had a working ovary. Through in vitro fertilization, eggs were retrieved from Mauws and implanted with sperm from Lancaster. The costly procedure produced six viable fertilized eggs.
"We actually did three transfers with [my cousin] that were all, sadly, unsuccessful," Mauws said.
The couple had one more option — another cousin, Rachel Foidart, also volunteered as a surrogate.
'A burden on the parents'
Before the fertilized egg could be implanted, the couple had to follow certain legal protocols to get a surrogacy agreement.
In such agreements, surrogates and parents decide on any stipulations and agree to follow the Assisted Human Reproduction Act, federal legislation that makes it illegal to pay a surrogate mother. Surrogates can be reimbursed for out-of-pocket expenses.
However, laws concerning parentage remain under provincial control. In Manitoba, there are two ways biological parents who use a surrogate can officially become their child's parents after the baby is born. The surrogate can give it up for adoption, and the parents then have to apply to adopt their own child or they can apply for parentage, which is a streamlined court process.
The process of declaring parentage is done weeks after the child is born and is accessible to different families including same-sex families.
"Our Vital Statistics Act is pretty outdated. For example, 'mother' is defined as whoever gives birth to that child," said Robynne Kazina, a Manitoba lawyer who practises in family law, assisted reproduction, surrogacy and adoption.
"It's very much time in Manitoba to get rid of those archaic assumptions about parentage when it's a reality today that children are born with assisted reproduction."
Kazina said she couldn't think of a case in Manitoba where a surrogate tried to maintain the rights of the child.
"That's everyone's fear … they think of these made-for-TV movies or the worst-case scenarios," she said. "It's so rare."
What's real, she said, is the anxiety the legal aspects can place on new parents.
"It's really a burden on the parents. They just had a child born, it's an amazing experience. The surrogate has done something altruistic," Kazina said.
"Then they have to deal with a lawyer and court papers when it's clear that, for instance, the husband of the surrogate was never, ever intended to be the father."
'We have to prove he is ours'
Having little Keelan at home is a gift and worth all the trouble, Lancaster said while holding his new son. And Keelan's surrogate mother has been supportive.
"I think the moment she saw us with him made everything worth it," Mauws said.
But for the family still adapting to sleepless nights and a newborn's demanding feeding schedule, it doesn't make sense that they have to spend so much time fighting for their son to be recognized as theirs.
"You would just think it's common sense that [with] her egg and my sperm, it would be our child," he said.
"I'm sure there are plenty of people out there that would probably think the same way."
Until that paperwork goes through, Mauws said, "Technically, he is not ours. We have to prove he is ours."
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The couple are pushing for the province's Progressive Conservative government to pick up where the former NDP government left off, by pushing through updates to parentage laws.
The laws need to be modernized, said Andrew Swan, the NDP member of the legislature for Minto and justice critic.
"One area that really needed work was the whole area of reproductive technology, of surrogacy, of all the ways that some parents choose or have to become parents in the province of Manitoba," Swan said.
"The truth is that people are going to become parents. The law has to keep up with that."
While his law died on the order paper, Swan said he is hopeful the new government will take that bill and bring it forward.
"But that hasn't happened to date," he said.