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On first glance the answer to the question, “who’s my Mommy?” seems simple – your mommy is the woman who gave birth to you, right? The Vital Statistics Act would agree with this definition, however our legal definitions of ‘mother’ have not kept pace with the scientific possibilities that now exist. Surrogacy, egg donations, and now the ability to transplant a uterus, requires us to ask whether a child’s mother is really the woman who gave birth to him or her. The answer is always: it depends.

It depends on where the genetic material that created the baby came from, as well as who the intended parents are going to be. There are a multitude of arrangements that can be made through surrogacy agreements, donor agreements, or other parenting agreements or declarations.

Despite the best intentions and planning, I anticipate that these agreements will at some point be challenged, and their validity litigated. We should all look forward to seeing whether such agreements will withstand the scrutiny of the court, and how the court will apply the overriding legal principle – the best interests of the child – to complicated issues of genetic heritage, intended parents, as well as these new and exciting agreements.

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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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