Definitions

15

The following definitions apply in this Part.

"assisted reproduction" means a method of conceiving a child other than by sexual intercourse, such as by artificial insemination or in vitro fertilization. (« procréation assistée »)

"birth parent" means a person who gives birth to a child, regardless of whether the person's own reproductive material was used in the child's conception. (« parent naturel »)

"child" includes a child over the age of 18. (« enfant »)

"donor" means a person who provides reproductive material or an embryo for use in assisted reproduction, other than for the donor's own reproductive use. (« donneur »)

"embryo" means a human organism during the first 56 days of its development following fertilization or creation, excluding any time during which its development has been suspended, and includes any cell derived from such an organism that is used for the purpose of creating a human being. (« embryon »)

"intended parent or parents" means a person who intends, or two persons who are married or in a marriage-like relationship who intend, to be the parent or parents of a child and who, for that purpose, enter into a surrogacy agreement. (« parent d'intention » et « parents d'intention »)

"reproductive material" means a human sperm or ovum or other human cell or a human gene, and includes a part of any of them. (« matériel reproductif »)

"surrogacy agreement" means a written agreement between a surrogate and the intended parent or parents of a child to be carried by the surrogate, in which

(a) the surrogate agrees to not be a parent of the child; and

(b) the intended parent or parents agree to be the child's parent or parents. (« accord de gestation pour autrui »)

"surrogate" means a birth parent who is a party to a surrogacy agreement. (« gestatrice pour autrui »)

Date of conception

16

A child born as a result of assisted reproduction is deemed to have been conceived on the day the reproductive material or embryo was implanted in the birth parent.

Providing reproductive material

17

A reference in this Part to a person providing reproductive material or an embryo is a reference to the provision of

(a) the person's own reproductive material; or

(b) an embryo created with the person's own reproductive material.

Parentage to be determined by this Part

18(1)

For all purposes of the law of Manitoba, the following rules apply:

A person is the child of the person's parents.

A child's parent is a person determined to be the child's parent under this Part or The Adoption Act.

The relationship of parent and child and kindred relationships flowing from that relationship must be determined under this Part.

A child has no more than two parents.

References in enactments and instruments

Exception

18(3)

Despite subsections (1) and (2), this Part must not be interpreted as affecting an instrument, or a disposition of property, made before this Part comes into force.

Parentage if adoption

19

If a child is adopted, the child's parents are as set out in The Adoption Act and this Part does not apply.

Donor not automatically parent

20

When a child is born as a result of assisted reproduction, a donor who provided reproductive material or an embryo

(a) is not, by reason only of the donation, the child's parent;

(b) must not be declared by a court, by reason only of the donation, to be the child's parent; and

(c) is the child's parent only if determined, under this Part, to be the child's parent.

DIVISION 2

HOW PARENTAGE IS DETERMINED

PARENTAGE IF SEXUAL INTERCOURSE

Parentage if sexual intercourse

21(1)

On the birth of a child conceived by sexual intercourse, the child's parents are the birth parent and the person whose sperm resulted in the conception of the child.

Presumption of parentage

21(2)

Unless the contrary is proved, a person is presumed to be a child's parent in any of the following circumstances:

The person was married to or was in a marriage-like relationship with the child's birth parent at the time of the child's birth.

The person was married to the child's birth parent and, in the 300-day period before the child's birth, the marriage was ended

(a) by the person's death;

(b) by a judgment of divorce; or

(c) as referred to in section 24.7 (void or voidable marriages).

The person was in a marriage-like relationship with the child's birth parent and, in the 300-day period before the child's birth, the relationship ended for any reason.

The person married the child's birth parent after the child's birth and acknowledged that the person is a parent of the child.

The person and the child's birth parent have acknowledged in writing that the person is the child's parent.

The person has been found or recognized by a court, whether in Manitoba or elsewhere, to be the child's parent in a proceeding other than under this Part.

No presumption in certain cases

21(3)

If more than one person may be presumed to be a child's parent under subsection (2), no presumption may be made under that subsection.

PARENTAGE IF ASSISTED REPRODUCTION

Parentage if assisted reproduction

22(1)

The birth parent of a child conceived through assisted reproduction is a parent of the child.

Other parent

22(2)

If the birth parent of a child conceived through assisted reproduction was married to or in a marriage-like relationship with another person when the child was conceived, the spouse or other person is also the child's parent.

Exception

22(3)

Subsection (2) does not apply if there is proof that, before the child was conceived, the spouse or other person

(a) did not consent to be the child's parent; or

(b) withdrew consent to be the child's parent.

Exception re surrogacy

22(4)

This section does not apply when the birth parent is a surrogate and the court has made a declaratory order under section 24.1 or 24.2.

DECLARATORY ORDER RE PARENTAGE — GENERAL

Declaratory order respecting parentage — general

23(1)

Subject to sections 24.1 and 24.2, any person who has an interest may apply to the court for a declaratory order that a person is or is not a parent of a child, whether born or unborn.

Notice

23(2)

Notice of an application must be given to the Director of Child and Family Services under The Child and Family Services Act for the purpose of ensuring that the child has not been placed for adoption.

No hearing if child placed for adoption

23(3)

The court must not hear an application under this section if, in response to a notice under subsection (2), the Director certifies to the court that

(a) the child has been placed for adoption; and

(b) more than 21 days have elapsed since a parent of the child consented to the child's adoption under The Adoption Act or signed a voluntary surrender of guardianship under The Child and Family Services Act.

Order

23(4)

If the court finds that a person is or is not a parent of a child, the court may make a declaratory order to that effect.

Order if deceased

23(5)

The court may make a declaratory order under this section despite the death of the child or the person who is the subject of the application, or both.

Factors

23(6)

When an application concerns a child conceived by sexual intercourse or through assisted reproduction without a surrogate, the court

(a) must give effect to any applicable presumption or rule set out in section 21 or 22;

(b) may consider evidence of the biological parentage of a child conceived by sexual intercourse; and

(c) may consider evidence as to whether there was consent to parentage under subsection 22(3) if the child was born as a result of assisted reproduction.

DECLARATORY ORDER — SURROGACY AGREEMENT

Entering into surrogacy agreement

24(1)

The intended parent or parents of a child and a surrogate may enter into a surrogacy agreement.

Agreement before conception

24(2)

A surrogacy agreement must be entered into before a child is conceived.

Assisted reproduction

24(3)

A child in relation to whom a surrogacy agreement is entered into must be conceived through assisted reproduction.

Content of agreement

24(4)

A surrogacy agreement must include the following provisions:

(a) that the potential surrogate will be the birth parent of a child conceived through assisted reproduction;

(b) that on the child's birth,

(i) the surrogate agrees not to be a parent of the child, and

(ii) the intended parent or parents agree to be the child's parent or parents;

(c) any provision required by the regulations.

Legal advice

24(5)

The surrogate and the intended parent or parents must each receive independent legal advice before entering into a surrogacy agreement, and a certificate to that effect must be attached to the agreement.

Shared parental responsibility

24(6)

Unless the surrogacy agreement provides otherwise, the surrogate and the intended parent or parents share the rights and responsibilities of a parent respecting the child from birth until the child is two days old.

Regulations

24(7)

For the purpose of clause (4)(c), the Lieutenant Governor in Council may make regulations respecting any additional provisions to be included in surrogacy agreements.

Application for declaratory order — surrogate consents

24.1(1)

If, after a child is born, the surrogate consents to relinquish entitlement to parentage of the child to the intended parent or parents, the intended parent or parents may apply to the court for a declaratory order that they are the child's parent or parents and the surrogate is not a parent.

Two-day waiting period

24.1(2)

The surrogate's consent must be in writing and must not be given before the child is two days old.

Conditions for making order

24.1(3)

The court must make the declaratory order sought under this section if it is satisfied that

(a) the surrogate and the intended parent or parents made a surrogacy agreement in compliance with the requirements of section 24;

(b) before the child was conceived, no party to the surrogacy agreement withdrew from the agreement; and

(c) after the child's birth,

(i) the surrogate consented to relinquish entitlement to parentage of the child to the intended parent or parents in accordance with subsection (2), and

(ii) the intended parent or parents took the child into their care.

Application within 30 days

24.1(4)

An application under this section must be made within 30 days after the child's birth, unless the court extends the time.

Agreement not evidence of consent

24.1(5)

A surrogacy agreement is not consent for the purposes of subsection (2) but may be used as evidence of the parties' intentions respecting the child's parentage.

Application for declaratory order — no consent

24.2(1)

If the surrogate does not give the consent referred to in subsection 24.1(2), any party to the surrogacy agreement may apply to the court for a declaratory order as to the parentage of the child.

Reasons for failure to consent

24.2(2)

An application may be made under this section if the surrogate refuses to give consent or if consent is not given because the surrogate

(a) is deceased or otherwise incapable of providing consent; or

(b) cannot be located after reasonable efforts have been made to do so.

Conditions for making order

24.2(3)

Before making a declaratory order under this section, the court must be satisfied that

(a) the surrogate and the intended parent or parents made a surrogacy agreement in compliance with the requirements of section 24; and

(b) before the child was conceived, no party to the surrogacy agreement withdrew from the agreement.

Declaratory order

24.2(4)

On application under this section, the court may make the declaratory order that is sought or make any other declaration of parentage as the court sees fit.

Effect of surrogacy agreement

24.2(5)

A surrogacy agreement is unenforceable in law but, in an application under this section, it may be used as evidence of

(a) an intended parent's or parents' intention to be a parent of the child contemplated by the agreement; and

(b) a surrogate's intention to not be a parent of a child contemplated by the agreement.

DIVISION 3

GENERAL PROVISIONS

Effect of new evidence on a declaratory order

24.3(1)

On application, the court may confirm or set aside a declaratory order that was made under this Part, or make a new order, if evidence that was not available at the previous hearing becomes available.

Rights and property interests not affected

24.3(2)

Setting aside an order under subsection (1) does not affect rights and duties that have already been exercised or interests in property that have already been distributed.

Best interests of child

24.4

Subsection 2(1) does not apply to a declaratory order of parentage under this Part, except an order made under section 24.2 (surrogate does not consent).

Definition — "parentage test"

24.5(1)

In this section, "parentage test" means a test used to identify inheritable characteristics, including

(a) a human leukocyte antigen test (HLA);

(b) a test of the deoxyribonucleic acid (DNA); and

(c) any other test the court considers appropriate.

Parentage test

24.5(2)

At the request of a party to an application under this Part, the court may make an order granting leave to have a tissue or blood sample, or both, taken from a named person for the purpose of conducting a parentage test and to submit the results in evidence.

Consent required

24.5(3)

No tissue or blood sample may be taken from a person without the person's consent.

Capacity to consent

24.5(4)

If a person named in an order made under subsection (2) is too young to consent, consent may be given by the person's parent or guardian.

Inference from refusal

24.5(5)

If a person refuses to give a tissue or blood sample for the purpose of conducting a parentage test or if a required consent is not given, the court may draw any inference it considers appropriate.

Cost

24.5(6)

An order made under subsection (2) may require a party to pay all or part of the cost of a parentage test.

No distinction between child born inside or outside marriage

24.6

There is no distinction between the status of a child born inside marriage and a child born outside marriage.

Void marriages

24.7(1)

For the purposes of this Part, if two people have entered into a void marriage but one or both of them went through the form of marriage in good faith and they lived together afterwards, they are deemed to have been married during the period they lived together and their marriage is deemed to have ended when they stopped living together.

Voidable marriages

24.7(2)

For the purposes of this Part, if a voidable marriage is declared a nullity, the persons who went through the form of marriage are deemed to have been married until the date of the declaratory order of nullity.

Orders to be filed with Vital Statistics

24.8(1)

The registrar or clerk of the court must file in the office of the Director of Vital Statistics a statement respecting every declaratory order of parentage made under this Part.

Acknowledgment of parentage may be filed

24.8(2)

A written acknowledgment of parentage referred to in item 5 of subsection 21(2) may be filed in the office of the Director.

Presumption where conflicting findings

34

There shall be no presumption of parentage where contradictory findings of parentage exist, whether extra-provincial or otherwise.

Definition of "parent"

3(0.1)

In subsections (2) to (7), "parent" means a birth parent and

(a) the birth parent's spouse; or

(b) another person who declares that they, together with the birth parent, are the child's parent by signing the statement respecting the birth under subsection (2) or a joint request under subsection (7).

Statement respecting birth

3(2)

After the birth of a child in the province and prior to the release from the health facility, or in the case of a home birth, within five days after the birth,

(a) the parents of the child or one of them;

(b) an employee in the health facility in which the child is born;

(c) if there is no person to whom clause (a) or (b) applies or if the child's parents are unable to act because of death, illness, absence from Manitoba or otherwise, a person standing in their place as parent; or

(d) if there is no person to whom clause (a), (b) or (c) applies, any person who has knowledge of the birth;

shall provide a statement in an approved form respecting the birth to the event registrar or to the director.

Registration if birth parent married

3(5)

If the birth parent is a married person on the day the child is born, the child's birth must be registered in one of the following ways:

(a) showing the particulars of the birth parent and their spouse as the child's parents;

(b) showing the particulars of only the birth parent as the child's parent, if the birth parent declares that their spouse is not a parent of the child;

(c) showing the particulars of the birth parent and a person other than their spouse as the child's parents, if both the birth parent and the other person sign the statement respecting the birth and the birth parent declares that their spouse is not a parent of the child.

Registration if birth parent unmarried

3(6)

If the birth parent is not a married person on the day the child is born, the child's birth must be registered in one of the following ways:

(a) showing the particulars of the birth parent and another person as the child's parents, if both the birth parent and the other person sign the statement respecting the birth;

(b) showing the particulars of only the birth parent as the child's parent.

Joint request

3(7)

At any time after a child's birth has been registered showing that only the birth parent is the child's parent under clause (5)(b) or (6)(b), the birth parent and a person who acknowledges that they are a parent of the child may make a joint written request in an approved form to the director for the person to be registered as a parent of the child. The director may amend the registration according to the joint request on payment of the prescribed fee.

Limit on amending birth registration

3(8)

Once a birth has been registered showing the birth parent and another person as the child's parents, the registration may be amended with respect to the identity of the parents only by a declaratory order or an order of adoption.

Notice to Director of Child and Family Services

30(7)

Within three days after receiving a statement respecting the birth of a child to an unmarried birth parent under the age of 18 years, the director shall send a copy of the statement to the Director of Child and Family Services.