Equal Parents, Equal Children: Reforming Canada's Parentage Laws to Recognize the Completeness of Women-Led Families
Kelly, Fiona, University of New Brunswick Law Journal
Abstract: Lesbian couples and single women are choosing to become parents, typically via some form of assisted conception, at ever increasing rates. These two groups make up approximately thirty per cent of all clients of fertility clinics in Canada, and many more conceive at home using the sperm of known donors. Yet, when lesbian mothers and single mothers by choice (SMCs) are challenged in the courts- usually by a known donor asserting legal parentage and the rights associated with it- judges, who often have little statutory guidance, routinely undermine the stability and integrity of these women-led families in ways heterosexual couples are protected against. In this article, I argue that equality for lesbian and SMC families is best achieved via legislative reform that prioritizes intention over biology in the assisted reproduction context, akin to the recently introduced legal parentage provisions in British Columbia's Family Law Act. The introduction of legislation of this type reduces judicial discretion and provides women-led families with the same level of pre-conception certainty heterosexual families have enjoyed for decades. In addition, I argue that in circumstances where legislative presumptions are not available, or where they fail to resolve the conflict, the best interests of the child test should be interpreted in a manner that is consistent with children's section 15 Charter equality rights. This will ensure that all children enjoy the same level of family stability and security, independent of the composition of their family or their method of conception.
Lesbian parents and single mothers by choice (SMCs) have become a permanent, and growing, component of Canada's family mosaic. Yet, the law has been slow to respond to these new forms of non-normative family. While women-led families have available to them an increasing array of legal mechanisms designed to assist in establishing parental ties, (1) substantial gaps remain. The most glaring is the absence of comprehensive provincial parentage laws--presumptive laws, typically legislative in form, that establish the child's parentage at birth. Unlike custody or access orders, which require an application to the court after the child is born, can be varied by subsequent application, and have no force after the child reaches the age of majority, legal parentage operates presumptively at birth, does not require a court application, cannot be varied, and survives the child reaching the age of majority, thus enabling inheritance. Legal parentage therefore provides significantly more long-term stability and security than an order for custody or access. Legal parentage also carries significant symbolic weight, particularly for non-biological lesbian mothers who have historically been denied the status of "parent", despite actively parenting their children from birth. (2)
Only five Canadian provinces - Quebec, Alberta, British Columbia, Prince Edward Island and Manitoba - have legal parentage laws applicable in situations of assisted conception that include lesbian couples. (3) Quebec is the only province that explicitly addresses parentage where the sperm donor is known, (4) or expressly envisages a single woman being a child's sole legal parent. Several provinces have no legislation at all, leaving even heterosexual couples with little legal guidance. However, the scarcity of legislation in this area poses few issues for opposite-sex couples, as they are typically able to rely on traditional presumptions of paternity to establish the legal parentage of the mother's male partner, to the extent his parentage is even questioned. (5) Lesbian couples and single women have no such luxury.
In the absence of legislative guidance judges typically resort to biology, rather than the parties' pre-conception intentions, as the determining factor in parentage disputes between lesbian couples or single women and their donors. …