Equal Parents, Equal Children: Reforming Canada's Parentage Laws to Recognize the Completeness of Women-Led Families

By Kelly, Fiona | University of New Brunswick Law Journal, January 2013 | Go to article overview

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.

INTRODUCTION

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. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • A full archive of books and articles related to this one
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Equal Parents, Equal Children: Reforming Canada's Parentage Laws to Recognize the Completeness of Women-Led Families
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

    Already a member? Log in now.