A Canadian Socio-legal Perspective

1. A Canadian Socio-legal Perspective New and Alternative Forms of Parenting By Andrew Carvajal February 2008

2. Why care about new forms of parenting?A few reasons why • Decreasing rate in fertility amongst heterosexual women in traditional couples • Accompanying demographic effect on the Canadian population • Are new forms of parenting balancing out these changes? • Has the law (legislature and jurisprudence) responded adequately to new ways in which Canadians are entering parenthood today? • Is it evolving fast enough? • What possible effects could the recognition of new forms of parenthood have on Canadian society? • Custodial effects • Economic effects – child support • Rules of filitation • Current conceptions of “family” and becoming a parent

3. The appeal of adoption • Not just an option for couples experiencing difficulties conceiving (Ouellette: 2003; Ouellette, Frigault:1996) • An alternative to pregnancy • Couples with biological children • Single individuals • Homosexual couples • Individuals beginning their families at a later age • In Quebec, the number of adoptions greatly increased after the beginning of the 1990s • Legally, adopted children have the same rights as biological counterparts • Law imposes a rupture on the family of origin of the child

4. International adoption • Decrease in the number of Canadian children available for adoption • Dramatic decline in the choice of adoption as an alternative to resolving pregnancies amongst adolescents (Daly & Sobol: 1994) • Less interest in adopting Canadian children (Sobol & Daly: 1995) • Crown wards tend to hold older children, many with special needs (Speirs & Duder: 2003) • Rise in the number of inter-country adoption in the 1990s • In 1990, Quebec adopts the “Loisurl'adoptioninternationale” facilitating procedures of int’l adoption

5. International adoption

6. International adoption • Bill C-14: An Act to Amend the Citizenship Act (Adoption) • Eliminates many of the distinctions that the Citizenship Act makes between biological children and adopted children born outside Canada • Enables an adopted person to acquire Canadian citizenship without having to become a permanent resident • Received Royal Assent in June 22nd 2007 • Federal court have further shown that differentiation between adoptive and biological children contravenes equality rights (s.15) of the Canadian Charter • Minister of Citizenship and Immigration v. Dular [1998] 2 FC 81

7. Gay parenting • Less and less the result of a breakdown of a previous heterosexual couple • Gayby boom • Increase in the number of children being born into gay or lesbian couples • Assisted reproduction • Gay adoption • May 1995, Ontario becomes the first province to allow same-sex adoption • Through legislation and jurisprudence, other provinces and territories have followed suit

8. Gay adoption • Re K. et al. (1995), 23 OR (3d) 679 (Ont.C.Prov. Div.) • Judge rules in favour of three lesbian couples who challenged the Ontario Child and Family Services Act as unconstitutional because it limits the adoption of same-sex couples contrary to s.15 of the Canadian Charter • Re A (1999), A.J. No. 1349 (QB) • Alberta joins in after much political resistance • 2002 reforms of the CCQ to ensure that same-sex partners enjoy spousal privileges

9. Assisted reproduction • Although assisted procreation has been relied on for over 25 years, the law has moved slowly • In Canada, just two jurisdictions have enacted legislation aimed at identifying parent – child relationships in the particular circumstances of assisted reproduction • Quebec (arts. 538-542 of the Civil Code of Quebec) • Alberta (Alberta Family Act S.A. 2003 c. F-4.5) • Other provincial legislatures have left original statutes pertaining to parentage in place, letting courts fill-in rules related to assisted procreation

10. Assisted reproduction • Judicial findings of parentage have thus been inconsistent, as evidenced in two dominant narratives: heterosexual couple v. lesbian couple • Stories of single women are less common • Courts are not particularly receptive to a woman deliberately creating a family without a partner • Johnson-Steeves v. Lee [1997] AJ No. 512 (Q.B.) • Men seeking parenthood through assisted procreation independently or as couples are altogether absent from legal narratives • Art. 538.3 CCQ allows two women to be‘ original parents ’ but not men • Surrogacy contracts not recognized under the CCQ (art. 541) • Adoption is the only choice

11. Assisted reproduction: heterosexual couples • Gamete donation • Birth mother’s spouse presumed father unless custody, access or child support is litigated • The genetically-related parent may seek custody on the basis that the other spouse, having no ‘ blood ’ connection, should not be regarded as a parent • T.D.L. v L.R.L. , [1994] OJ No 896 ; Zegotav. Zegota-Rzegocinski[1995] OJ No 204) • A non-genetically related parent might argue that he or she lacks parental status and thus should be relieved of child support • J .B. v D. J. [2004] RDF 585 (C.S.) • Courts have generally been unresponsive to these types of claims

12. Assisted reproduction: heterosexual couples • Surrogacy • Enforceable in all Canadian provinces except Quebec (art. 541 CCQ), and possibly Alberta • But, surrogacy agreements for financial gain are criminally prohibited by the Federal Parliament (AssistedHuman Reproduction Act, 2004) • In gestational surrogacy those who contracted the surrogate are recognized and registered as the child’s parents (Rypkema v. B.C. [2003] BCJ No. 2721 (QB)) • In genetic surrogacy courts are less inclined to find the contracting parents as parents in law • H.L.W. v T.H.W [2005] BCJ No. 2616 (QB)

13. Assisted reproduction: lesbian couples • Gamete donation • The law (outside Quebec) does not provide a presumption of maternity on the female partner of the birth mother • Challenged as unconstitutional, albeit unsuccessful (P.C. v. S.L. [2005] SJ No 744 (QB)) • Most viable path to parenthood is adoption • Requires evidence that the child’s birth parents consent to adoption • Difficult if the female partners are no longer in good terms • May also be problematic if the child has a legally recognized father • The court must find that the adoption is in the best interest of the child (see art. 543 in the case of Quebec)

14. Assisted reproduction: lesbian couples • Two decisions illuminate a potential trend in the common law towards recognizing dual motherhood. • M D.R . v. Ontario (Deputy Registrar General) [2006] OJ No 2268 • Challenge by four lesbian couples to the province’s Vital Statistics Act as unconstitutional (due to s.15 of the Charter) because it provided for the recognition of just one mother and one father on a child’s birth registration • Fraess v. Alberta [2005] AJ No 1665 • Court deemed unconstitutional s 13(2)(b) of the Family Law Act, which recognized the parental status of male spouses of women who conceived from donated sperm, but not female partners

15. Quebec and the new “parental project” • The recognition of the dual maternity occurred at the legislative level with the 2002 amendment of the Civil Code • Tries to delineate more clearly the roles, rights and responsibilities to be allocated within the ‘conception triangle’ that arises in assisted reproduction • Key amendment to the “Book on Filiation” is the introduction of the “parental project” • Art. 538: when a person, or spouses, decide to conceive by relying on genetic material donated by a third party • Donor will bear no bond of filitation (art. 538.2) • Art. 538.3 extends the presumption of ‘ paternity ’ to spouses (male or female) who participated in a child’s birth through the formation of a parental project with the birth mother • Art. 539.1 further indicates that if both the child’s parents are women, the partner who did not give birth should be assigned the rights and obligations normally assigned by law to a father’

16. Quebec and the new “parental project” • Some conflictive provisions • Art. 538.2 denotes that a “parental project” does not need to involve artificial insemination • A woman can be inseminated through intercourse without the male partner holding a bond of filiation • But, in the case of intercourse, the donor has a 1-year window following the birth of the child to make a paternity claim • In many cases what determines who the parents of the child are depends on whether there was a parental project with the spouse of the birth mother or not

17. Quebec and the new “parental project” • The challenges in practice • Where a child is conceived through intercourse • In order to establish filiation, the spouse of the birth mother will argue that there was a parental project with her partner, while the biological father will argue there wasn’t one • See L.B. v. Li. Ba. (2006) QCCS 891 • If neither want parental responsibility, the biological father will argue his sexual involvement was merely as a donor, and the partner of the birth mother will maintain that she didn’t consent to her insemination by a third party • Art. 539 provides that the spouse of a woman may contest her filiation to a child if there was no parental project • Art. 538 limits parental project to a situation where the parties consent to a third’s party genetic material to conceive

18. Quebec and the new “parental project” • The challenges in practice • L.C. v S.G [2004] JQ No 7060 (CA) • Child was registered as having two mothers, but this contested by the biological father who wanted the birth registration to reflect his paternity • The court had to decide whether the parties had agreed that he was a just a sperm donor in their parental project, or whether he contribute sperm based on aspirations of becoming a father • The court allowed the father with visitation rights while the case was resolved, effectively giving parent-like rights to a “sperm-donor” from a legal perspective

19. Not just the typical two-parent household • Co-maternity is particularly difficult in the presence of a third parent • Parenthood is still perceived as a binary concept • Jurisprudence is starting to make this challenge more visible • In loco parentis doctrine • Extends parental rights and obligations set out in the federal Divorce Act to step-parents who “stands in the place of a parent”, regardless of a child having two legally-recognized parents • Applies, however, when a legal parent is almost inexistent in the life of the child • Chartier v. Chartier[1999] 1 SCR 242

20. Not just the typical two-parent household • A.A. v. B.B. [2003] OJ No 2646 • A child’s birth mother, her spouse and the biological father wanted to be recognized as the parents • The court denied the request from the female partner of the birth mother, despite having raised the child since birth, arguing that the Children’s Law Reform Act limited the number of parents to two • The Ontario Court of Appeal ([2007] OJ No 2) granted the request and declared the spouse a mother of the child • The Act did not contemplate scientific innovations, so the court acted in the best interest of the child (parenspatrie) to fill the legislative gaps • Permission to appeal to the Supreme Court sought by the Alliance for Marriage and Family was denied on issues of standing • Re Patrick (Australia, 2002) • A man who acted as a sperm donor to a lesbian couple was awarded considerable access with the two year old child conceived via his donation, against the wishes of the mother and co-parent

21. What do we learn? • Adapting the law to new forms of parenthood lies at the cross-road of many battles • Accommodating the interests of children v. the interests of parents • Mediating between parents, lawyers, judges and the legislature • State power v. private interests regarding filiation • Public v. private interests • Campbell (2007): three dynamics that shape legal debate surrounding filiation • Biological conception with children • Significant in a vast amount of jurisprudence • Contractual expression of intent • E.g. Quebec’s “parental project” • Social relationships developed between children and parents as a result of conception arrangements • May develop differently than agreed before conception of the child • What is in the best interest of the child in light of the circumstances?

22. Best interest of the child • L.C. v S.G. • While the evidence regarding the parental project was controversial, the court upheld a judgment granting a sperm donor interim access to the child, noting that he had not seen his father in two years • A.A. v. B.B. • Appeal’s court recognized the existence of three parents, while acting in the best interest of the child • The trial judge even noticed that the court must also be concerned about the best interests of other children not before the court , and denied the application in fear of opening the door to step-parents, extended family and others to claim parental status in less harmonious circumstances

23. Best interest of the child • “I just want both my moms recognized as my moms. Most of my friends have not had to think about things like this – they take for granted that their parents are legally recognized as their parents. I would like my family recognized the same way as any other family, not treated differently because both my parents are women. Most kids understand that I have two moms. But a few kids are mean or just do not understand. They ask who my ‘ real ’ mom is. I explain that both of my moms are my real moms. Some adults do not understand either. It would help if the government and the law recognized that I have two moms. It would help more people to understand. It would make my life easier. I want my family to be accepted and included, just like everybody else’s family. Imagine winning the case, it would feel amazing. It would feel like we would not have to lie anymore. We would not have to worry about getting in trouble. Nobody could question who my mothers are anymore. I would feel more secure and safer. We could tell the truth. I could just be who I am, and sign my own signature, S.R.E.F.”