Usually when the term surrogate arises in the context of wills and estates, the focus is on surrogate courts or surrogate rules. Outside the scope of wills and estates, in comparison, the term surrogate is more broadly associated with the birth of a child by means of surrogacy.

As new family structures are legally recognized in Ontario, an issue that we can expect the courts to address in the future is whether a child born through a surrogacy arrangement is entitled to share in the estate of the surrogate (a.k.a. birth mother), should the birth mother pass away intestate.

Under Part II of the Succession Law Reform Act, entitlement to inherit from an intestate estate is determined in accordance with a hierarchy of potential beneficiaries, starting with the deceased’s spouse and children. The SLRA does not address parentage though – this topic is instead addressed by the Children’s Law Reform Act. The provisions governing parentage in the CLRA apply for all purposes of the law of Ontario, including intestate succession, as noted by Justice Heeney in Estate of Sydney Monteith v. Monteith et al, 2023 ONSC 7246.

Under the CLRA, a child’s birth parent is presumed to be the child’s legal parent: see subsection 6(1). However, the legislation also permits a surrogate to legally relinquish the entitlement to parentage through a surrogacy agreement.

To create a legally binding surrogacy agreement whereby the surrogate agrees to not be a parent of the child, certain requirements addressed in section 10 of the CLRA must be satisfied:

• the child must be conceived using assisted reproduction;
• the surrogate must intend to relinquish parentage of the child before the child is conceived;
• the surrogate and the child’s intended parents must enter a written (rather than a verbal) surrogacy agreement before the child is conceived;
• all parties to the agreement must receive independent legal advice; and
• the agreement must provide for no more than four intended parents (for surrogacy agreements involving more than four parents, see section 11).

After the child is born and is at least seven days old, the surrogate must then consent in writing to relinquish parentage and present this consent to the intended parents. At this point, the child will legally become the child of the intended parents, and will cease to be the child of the surrogate: see subsections 10(3) and 10(4).

The Superior Court of Justice may also grant a declaration regarding parentage under subsection 10(7) if there is a surrogacy agreement in place but the surrogate does not provide consent to relinquish entitlement to parentage. Such relief may be sought if the surrogate is incapable of giving consent, cannot be located, or simply refuses to provide consent: see subsection 10(6).

Technically, this means that a surrogate birth mother will still be legally recognized as a child’s parent if:

• there is no agreement between the surrogate and the child’s intended parents before the child is conceived;
• there is an agreement, but it does not comply with the CLRA; or
• there is no court declaration as to parentage.

Under these circumstances, if a surrogate were to pass away intestate, it appears that the child borne by the surrogate would be entitled to share in their birth mother’s estate.

That said, an estate trustee could try to prevent such an outcome by bringing an application for a declaration of non-parentage under section 13 of the CLRA. Subsection 13(1) states: “At any time after a child is born, any person having an interest may apply to the court for a declaration that a person is or is not a parent of the child” (emphasis added). Such a declaration would be determinative of whether the child may share in the deceased’s estate, as section 15 of the CLRA provides that a declaration under section 13 “shall be recognized for all purposes” and “is deemed to have been effective from the child’s birth.” To obtain such a declaration, it appears that the court would have to find on the balance of probabilities that the child’s birth mother is not the child’s legal parent: see subsection 13(3). Whoever seeks a declaration of non-parentage bears the burden of demonstrating that this relief is appropriate: see M.R.R. v J.M., 2017 ONSC 2655.

Section 13 has been considered by the Ontario Superior Court with respect to a surrogacy arrangement in M.L. v. J.C., 2017 ONSC 7179, after a dispute arose as to whether a surrogate was the child’s parent, but an estate has not yet used it to seek a declaration that a deceased person is not a parent. Based on the court’s reasoning in M.L. v. J.C., meeting the burden for a declaration of non-parentage could be challenging. The availability of such relief may turn on whether there is evidence establishing that the surrogate did not want to be the child’s parent. The Superior Court of Justice noted in M.L. v. J.C. that “the authority to make declarations of parentage under section 13 is quite constrained, there are no statutory conditions or constraints set out in the CLRA regarding when it would be appropriate to make a declaration that a person is not a parent.” Justice Madsen went on to note:

“Entitlement to parentage should not be denied except in narrow circumstances … If there is no valid surrogacy agreement, I have difficulty envisaging other circumstances which would lead the Court to make a declaration of non-parentage under section 13, unless, for example, the Application were to be on the consent of the parties.”

In M.R.R. v. J.M., the court also noted that it may not be necessary to consider the best interests of the child when making a declaration of non-parentage under section 13.

Because this is such a novel area, plus section 13 does not provide any guidance as to what factors the court should consider before granting an order, it is very difficult to predict how an application for a declaration of non-parentage sought by an estate would be determined.

Thanks for reading, and have a great day!

Ian.