What happens to an embryo created by an infertile couple to create a child through surrogacy, but the couple breaks up before any children are conceived?
Specifically: who gets the embryo?
You might be surprised.
What about if the parties sign a separation agreement, saying that one of them is entitled to keep and use the embryos?
That was the situation in an Ontario case called S.H. v D.H. (2019 ONCA 454).
In that case, involving a man and a woman, the man had agreed in a separation agreement that his partner could keep and use the embryos, which were stored at a Canadian fertility lab.   The couple had signed a consent with the lab saying that if there was a 'divorce or legal separation between the patient and her partner, the clinic would 'respect the patient [woman's] wishes'. 
But seven years after the separation, the man changed his mind.  He wrote to the U.S. clinic and said that he was withdrawing his consent for the release of the embryos to his ex-partner.
The clinic then said they would not release them till the woman got a court order.
The Ontario Court of Appeal held that even though the parties had signed a separation agreement dealing with this issue, the Assisted Human Reproduction Act Regulations take precedence and the separation agreement does not apply.
Under the regulations, a "donor" is defined to include "couple who are spouses a the time the in vitro embryo is created, even where neither person within the couple contributes reproductive material to the embryo.  The regulations go on to provide that if the donor is a couple, either spouse may withdraw consent before the embryo is used. 
The man said he had changed his mind about wanting his ex-partner to be able to use the excess embryos to create a child, even though his ex said she would make no claim against him for child support.
The takeaway:  if you are having a child by assisted human reproduction, you must consult a lawyer who is versed in this complex area of law  (In fact BC law requires that you have a pre-conception contract if you are going to conceive with donated material or with a surrogate). 
Feel free to contact our office, or any of the members of the working group Fertility Law BC, (www.fertilitylawbc.com) for assistance. 

Health Care For Migrants: National Day of Action – Vancouver
Tuesday February 12 2019, 8-9 AM PST
Outside Adrian Dix's office, 5022 Joyce St
Coast Salish Territory
Facebook event: https://www.facebook.com/events/390511105036484/
Join us for rallies across Canada on February 12th to call on the government to stop the denial of healthcare on the basis of immigration status!
The United Nations Human Rights Committee (UNHRC) recently issued a landmark decision condemning Canada for denying access to essential health care on the basis of immigration status based on the case of Nell Toussaint. In light of this UN decision, over 1500 individuals and 80 organizations signed an open letter  addressed to the federal government (see media coverage).
We are appalled by the details of Nell’s case and existing policies that place the lives and health of hundreds of thousands unnecessarily at risk. Specifically, we demand that the Federal government:
1.
2.
3.
In British Columbia, even newborn babies, who should be eligible for MSP under the current policies and regulations, come across barriers in attempts to enroll for health coverage and subsequently access vital health services. Two years ago the Ministry of Health committed to review the enrollment process and train staff to address this gap in care. Progress has not been made on this front and newborn babies continue to be at risk for harm while they wait for the Ministry to address this disparity.
 
Join us outside Adrian Dix’s office at 8 AM on Tuesday February 12th 2019  to call for Access to Healthcare for All and Access to Healthcare without Fear!
​

​I'm passing on this information from my friend Sadie Epstein-Fine.  This should be GREAT! 

Dear friends, community, family,
 
We're taking Spawning Generations: Rants and Reflections on Growing Up with LGBTQ+ Parents (Edited by Sadie Epstein-Fine and Makeda Zook) on the road in 2019!
 
We'll be in Vancouver at Massy Books on Thursday January 17 at 7 pm!(poster attached)
 
AND
 
We're partnering with COLAGE (a national queerspawn organization in the US) to launch our book for the first time in the States! We hope to see those of you in the New York City area at Bluestockings bookstore on Wednesday January 23 at 7 pm! (see attached poster)
 
At both launches you can expect readings, lots of mingling, light snacks and community vibes!
 
Even if you're not located in Vancouver or NYC - please pass this email and attached posters along to friends, family and colleagues who might be interested in the Vancouver (and Victoria!) AND New York areas.
 
Also - we did a thing! In anticipation of the New York City launch, we were invited onto the podcast If These Ovaries Could Talk - check out the episode here:

http://traffic.libsyn.com/ovariestalk/ITOCT_-_Queer_Spawn.m4a
 
 
AND THIS JUST IN:
We made NOW Magazine's top ten booklist of 2018!!!! We could not be more humbled and proud to be on a list that includes authors like Dionne Brand and Miriam Toews (!!!!):
https://nowtoronto.com/culture/books/the-10-best-books-of-2018/
 
We hope to see those of you on the West Coast of Canada or the Eastern US seaboard in January 2019 and if you haven't already, don't forget to purchase your copy through Demeter Press!
 
Finally, if you use facebook, instagram and/or twitter, please like and follow our book! We will have more information about the launch posted through facebook and shared over instagram and twitter soon, so stay tuned!

The Mnistry of Health today announced that gender confirming surgeries will be able to be done in B.C.

Although the program is not yet accepting referrals, once it is scaled up there will be fourteen surgeons around the province and services will include vaginoplasties, vulvoplasties, metaoidioplasticies and phalloplasties.

This will mean that patients seeking those surgeries will no longer have to travel to Montreal or to the United States, as is now the case.  Quality of care will be able to be maintained more easily. 

For more information, check out the PHSA website.

If a couple creates an embryo, and separates before the embryo is implanted in the woman, who owns the embryo?  The woman? Or her husband? Or both?

An Ontario couple purchased eggs and sperm from a U.S. source (it is illegal to buy or sell eggs, sperm or embryos in Canada). Two viable embryos were created through in vitro fertilization at an Ontario fertility clinic.

One of the embryos was implanted, and the couple had a son.  But eight days after the son was born, the couple broke up.  The wife and husband each claimed ownership of the embryo.

The court looked at the agreement the couple signed at the fertility clinic, which specified that "the patient's wishes" would be respected in the case of a divorce.  The "patient" was the wife. 

The husband argued that he should be the owner, because he had paid for the procedure, and because the consent form they signed in the U.S. should 'trump' the one they signed at the fertility clinic.  

The court held for the wife, who is planning to use the embryo to create another baby.  

The case is precedent-setting because the court considered that the embryo, which was genetically unrelated to either party, is property.  

​The moral of the story is to consider these questions before embarking on a fertilization project.  

The case is called SD v DH 2018 ONSC 4506

In a Canadian first, a Newfoundland and Labrador court recognized all three adults in a poly relationship as parents of their child.

The case concerned a poly family composed of two men and one woman.  The woman in the trupple (three person poly relationship) gave birth to a child.  The family did not know which man was the father
The law in Newfoundland did not recognize more than two parents.  The judge said that there was a gap in the 30-year-old legislation, because it didn't consider poly families.  The judge said it was in the best interests of the child that all three of the child's parents be recognized under the law.

This case is a significant development for poly families.  In the last couple of decades, parenting cases were mostly about the recognition of same sex parents .  In a 2007 Ontario case, a lesbian couple had a child which was born from a sexual relationship between one of the mothers and a male friend.  In that case the court held that both of a child's mothers were parents along with the child's father.  But in that case the three parents did not live together and were not in a continuing poly relationship.

In B.C., the law does provide for the recognition of three parents where there are two people and a donor of genetic material, if everyone agrees.  But the law makes no general provision for the children of a trupple.  So the same logic would apply to a B.C. case: there is a gap in the legislation, and all three adults in the trupple should be recognized as the parents of a child born to them.

Parents who already have children when they form a trupple cannot be legally recognized as 'parents' of their collective children, though if the trupple later broke up a court could find that it was in the best interests of the children to spend time with each of the parents.  

It is theoretically possible for a court to order that all the parents in the trupple are guardians of the children (giving them most of the rights of a parent, including the right to decide a child's medical care).   Or a trupple in that situation can make an agreement with each other which confers emergency guardianship on each parent with respect to all the children.

Polygamous families - more than two married spouses - are illegal in Canada, but polyamorous families - where more than two people are in conjugal relationships with each other - are not illegal.  

For more information about polyamorous families, read John-Paul Boyd's article.

What is between one's legs is nobody's business.

That is the essence of a recent ruling by the BCHRT, in the case of Oger v Whatcott.

When Morgane Oger, a transwoman, ran for office Bill Whatcott distruted hundreds of flyers claiming she was unfit because of her gender identity.  Whatcott's flyers described Oger as a "biological male who has renamed himself...after he embraced a transvestite lifestyle" ; described being transgender as an "impossibility" which exposes people to harm and constitutes a sin.
Oger filed a complaint with the tribunal, alleging that Whatcott's flyers are hate speech within the meaning of the Human Rights Code.

That case is set to be heard in September.

Whatcott made an application to require Oger to disclose her birth certificate and medical records, and to compel her to have an independent medical examination.  He claimed that Oger has the burden to prove she is protected by the ground of "gender identity" and that his applications were relevant to that issue. 

In a strong decision, the Tribunal held that Oger was not required to produce her records, or have a medical exam.  The Tribunal member said:

              "...Mr. Whatcott's requests are overly intrusive into Ms Oger's privacy and not at all relevant for the disposition of this complaint.  Furthermore, the basis for the requests is questionable insofar as they are premised on Mr. Whatcott contesting that Ms Oger is a transgender woman.  That fact is the very foundation of his publications concerning her fitness for office.

             This complaint is not about Ms Oger's medical records or the personal circumstances underlying her gender identity.  Nor, as I have said, is this Tribunal a forum for Mr. Whatcott to defend the truth of his convictions...Her identity is hers alone, and the Legislature has expressly chosen to recognize it and confer protection on her by the inclusion of "gender identity and expression" as a protected characteristic in the Code."

This case sets a wonderful precedent for any trans folk who do not want to provide evidence of their gender.  It says that the person's assertion of their gender identity is enough:  no birth certificate required, no medical records are relevant.

Stay tuned for the case itself in the fall.  

The Government of Canada is havng a consultation to explore "new approaches to the collection, use and display of sex and gender information in order to be more inclusive of gender diverse communities".  The Vancouver Consultation is February 13 from 1pm to 4 pm.

I have responded to the very-late-sent invitation to say that I will attend with approximately 20 trans folk.

Would any trans folk who want to attend please email me as soon as possible to bjf@barbarafindlay.com, including your full name, pronoun, and any accommodation needs.  I'll send the information on.

Since they say the "deadline" to register is January 31, the sooner you can email me the better!

Hoping to see a wide range of trans people at the meeting!
​

The Ontario Court of Appeal decided last Wednesday that parents do not have a right to withdraw students from classes on the basis of their 'freedom of religion' .

In the case, called Sharpe et al v Hamilton-Wentworth School Board , a Greek Orthodox parent had requested that he be notified and his children removed from instruction about a broad number of topics, in particular education about sexual orientation and gender identity.

The Education Act in Ontario provides in part:
169.1  (1)  Every board shall,
         (a)   promote student achievement and well-being;
         (a.1)   promote a positive school climate that is inclusive and accepting of all pupils, including pupils of any race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability;

The school policy based on that section of the law says:
​
Students are to be provided with learning materials that are bias-free and that reflect the diversity of the school’s population, including diversity of sexual orientation and gender identity. A central feature of the Policy is that diversity, anti-discrimination and anti-homophobia are not taught in stand-alone lessons but rather are fully integrated into the curriculum so that acceptance of difference becomes routine. For example, teaching materials for a lesson in mathematics might feature children with two fathers or two mothers. In this way, all courses are infused with equity principles and teachers are directed to ensure that all students—including lesbian, gay, bisexual, transgender, transsexual, two spirited, intersex, queer and questioning people—will, in the words of the EIES, be “engaged, included, and respected, and … see themselves reflected in their learning environment”.

The School Board's evidence was that topics like sexual orientation and gender identity were not taught solely in discrete units in, for example, a health curriculum but were integrated throughout the school's curriculum. So a unit on math, for example, might refer to same sex parents.

The Ontario Court of Appeal - the highest court in Ontario, and a very influential court nation-wide, said that Mr Sharpe's freedom of religion was not affected...first, because he could point to no actual instruction that offended his religion, and second because parents can't insist that students not be taught equity and inclusion on the basis of freedom of religion.

The court said:
 E.T. cannot, by virtue of his religious beliefs, insist that a non-denominational public school board restructure its inclusive and integrated program, designed to meet its statutory objective of ensuring a respectful and accepting climate for all children, so that he can ensure that his own children are not exposed to any views that he does not accept. Nor do I accept E.T.’s suggestion that the Board could or should ensure that discussion of matters such as sexual orientation and gender identity are discussed purely as matters of fact rather than as matters of “value judgment”. The Board has a statutory mandate to provide an inclusive and tolerant educational environment, one that respects the principles of equality enshrined in s. 15 of the Charter. Equality, inclusivity and acceptance of difference are values, not facts, and it is unrealistic to expect teachers to provide a learning environment that is truly welcoming to all students in a value-free manner.

This is a great decision in the ongoing battle between the Charter-protected right to freedom of religion and the Charter-protected right to equality.