What is the test for establishing that a gestational surrogate has parental rights to a child born to her?
British Columbia, Canada
The following excerpt is from Rypkema v. H.M.T.Q. et al., 2003 BCSC 1784 (CanLII):
In Johnson v. Calvert (1993), 5 Cal. (4th) 84, the California court held that the gestational surrogate had no parental rights to a child born to her. The court held that there were two distinct ways to prove maternity under the California Family Law Code. One was proof of giving birth to the child and the other was by proving genetic consanguinity through blood tests. The court held that when two women can prove that they are the mother, as in the case of gestational surrogacy, the court held that the one who intended to “bring about the birth of a child that she intended to raise as her own – is the natural mother under California law.” (c) Discussion
While there is no B.C. case addressing the issue on this application, in O’Driscoll v. McLeod (1986), 1986 CanLII 735 (BC SC), 10 B.C.L.R. (2d) 108, Huddart L.J.S.C. (as she then was) held that the court had jurisdiction to make binding declarations of paternity. I conclude that the court must also have jurisdiction to make binding declarations of maternity.
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