Winnipeg couple files complaint over birth registration laws after surrogacy legal hurdles

It took five weeks and cost Winnipeg dads Darrel Nadeau and Mackenzie Dyck about $6,000 to get formally recognized as parents after a surrogate mother gave birth to their son, Théo.

Manitoba premier apologizes to 2-father family for lengthy, expensive process

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It took five weeks and cost Winnipeg dads Darrel Nadeau and Mackenzie Dyck about $6,000 to get formally recognized as parents after a surrogate mother gave birth to their son, Théo.

After going through the process, they filed a complaint with the Manitoba Human Rights Commission and wrote a letter to the province because Nadeau said it discriminates against gay couples, people with fertility issues and those who can't give birth.

"For us, it was important to make a change, a lasting change for future families that go through this process," Nadeau, who's currently on parental leave, said in an interview Thursday at the Canadian Museum for Human Rights, where he works.

Surrogacy involves someone carrying and giving birth to a child for another person or couple.

Manitoba has a law that deals with surrogacy, but Nadeau said it unnecessarily and unfairly makes couples jump through lengthy, costly and complex legal hurdles both before and after birth to get their names on important documents, including a birth certificate.

"We faced discrimination as a two-dad family," Nadeau said, while holding Théo in his arms. 

He said aspects of the law are "outdated."

The current law, which was amended in 2021, requires the intended parent or parents to enter into an agreement with the surrogate. Once the child is born, the surrogate consents to give up the child soon after, according to the province's website.

Nadeau and Théo at the Canadian Museum for Human Rights, where the new father works, on Thursday. He says it feels natural to lead a push for change because of his workplace. (Catherine Moreau/Radio-Canada)

"The woman who gives birth, in our case a surrogate, automatically gets listed as mother on birth registration documents," Nadeau said.

Getting the province to remove the surrogate and recognize both Nadeau and Dyck as Théo's parents meant jumping through more legal hurdles after their son was born.

"Before the pregnancy, there's a full legal agreement. And so other provinces, they use that to kind of pre-approve the change in parents at birth," Nadeau said. 

"We had to go through that legal process just to medically be able to go for surrogacy."

He said that agreement is not taken into account after birth.

"You have to start a process completely from scratch because the law just doesn't have the flexibility to recognize a surrogacy agreement."

Nadeau suspects the law has been left this way because of a smaller number of people using surrogacy compared with other provinces.

"That doesn't mean that we should just sweep it under the rug and hope that they don't complain," he said.

Premier apologizes

Nadeau and Dyck's experience caught the attention of Manitoba Premier Wab Kinew.

In the letter to Kinew's office and Justice Minister Matt Wiebe sent last month, Nadeau called on the province to update its legal framework for families who use surrogacy.

He got a response back dated Oct. 6 suggesting his concerns were being taken seriously.

At an unrelated news conference in Brandon on Thursday, Kinew said he was "taken aback" by the couple's experience, calling it an "oversight" and promising to "fix it."

"I just want to apologize on behalf of the province of Manitoba," he said.

"It was my understanding that this issue had been resolved years and years and years ago."

While no exact timeline was given, Kinew suggested changes will be coming quickly.

"It's supposed to be the happiest moment of your life," the premier said.

"It's not supposed to be the start of an endless litigious process of cutting through red tape and paying fees and stuff like that."

Ontario's legislation changed in 2017 to "a more streamlined process," said Erin Lepine, a partner at Ottawa-based Richardson Hall who specializes in family and fertility law.

"Seven days after birth, the intended parents can apply for their birth certificate recognizing them as the parents and the surrogate not as a parent, without having to go through a court process," she said. 

Lepine said it's an administrative process as long as four legislative requirements are met.

• Manitoba parents who had child through surrogacy fighting for mat leave benefits

• The path to parenthood: A made-in-Manitoba surrogacy story

A surrogacy agreement must be signed before conception, the parties in the agreement must get independent legal advice, there can be no more than four intended parents in the agreement and the child must have been conceived by assisted reproduction.

"Back before these changes were made in 2017, we did have to do the same thing as what I understand they're doing in Manitoba," Lepine said.  

She said the longer, more expensive process had practical implications on intended parents beyond being more time-consuming and expensive.

"They were waiting a significant amount of time before they could apply for their government benefits and things you need for your child when they're born," Lepine said.

Nadeau welcomes the premier's willingness to update Manitoba's process but won't celebrate until he sees concrete changes.

"If nobody asks for change, it's not going to happen," the human rights museum employee said. 

"For me, it feels natural to lead a process to make change on human rights. And so, that's our primary motivation."

ABOUT THE AUTHOR

Josh Crabb has been a reporter at CBC Manitoba since January 2023. He started reporting in 2005 at CKX-TV in Brandon, Man. After spending three years working in television in Red Deer, Alta., Josh returned to Manitoba in 2010 and has been covering stories across the province and in Winnipeg ever since.