Earlier this week I reviewed the British Columbia government’s recommendations for changes to family law.
One of the most groundbreaking aspects of the recommendations is the decision to change the definition of “parent” in the Family Relations Act. A “parent” under the current law is either biologically connected with the child; has adopted the child; or lives with the mother or father of the child and is therefore a stepparent.
Reproductive technology, surrogacy contracts and same sex marriage and adoption has changed the way the modern family is formed.
The obvious gap in the legislation to deal with these unique, but growing number of families, was first recognized by the Ontario Court of Appeal in 2007.
It all began in 2003 when a lesbian couple arranged for one of their male friends to be the sperm donor for the child they wanted. He agreed to do so and also wished to be engaged in the child’s life as a parent.
After the birth of the child, mother and father were clearly identified, but what status did mother’s lesbian partner have vis a vis the child?
The child’s mother asked the Court to make a declaration that her lesbian partner was also a parent. The Court declined saying that the legislation did not permit the declaration she sought.
Mother brought an appeal to Ontario’s Court of Appeal. The case attracted the attention of various interest groups who were granted leave to make arguments at the hearing. The Alliance for Marriage and the Family argued that the recognition of three parents was not in a child’s best interests and posed the question: “Who is parenthood for, adults or children?” They also noted that Elizabeth Marquardt, a well-respected researcher and the author of “My Daddy is a Donor”, had conducted extensive interviews with children who were conceived through sperm or egg donation. Many of these children referred to themselves as “half-adopted” or “queer spawn”.
Relying on the equality provisions of the Canadian Charter of Rights and Freedoms, Ontario’s highest court ruled that the present definition of “parent” was discriminatory to gay and lesbian parents and their partners and struck down the law.
The Court’s decision followed on the heels of both New Zealand and Australia’s Law Commissions recommending the recognition of gay and lesbian parents and their partners or sperm or egg donors where appropriate.
In Quebec, female partners of lesbian mothers were already noted on a child’s birth certificate as the “father”.
A review of the postmodern family and the evolution of family law around the world, indicates that while precedent-setting in North America, the notion of “three parents” is a concept whose time has arrived, whether we like it or not.