Challenging the Nuclear Family, Protecting Lesbian Mothers: A Legal Catch-22

Despite the enormous increase in the number of lesbians choosing to parent, as well as the numerous legal victories they have achieved in recent years, lesbian mothers remain legally vulnerable. Non-biological mothers in particular are subject to the whim of both biological mothers and the courts, while the legal status of known sperm donors remains largely unresolved.

Defining legal parenthood within lesbian headed families has emerged as one of the most contentious issues within modern family law. In the mid 1990s, a series of Charter challenges forced a number of provinces to extend and adapt adoption principles so that a non-biological lesbian mother could, with consent, adopt a child born to her partner without the biological mother losing her parental rights. In other words, a child could have two legal mothers. More recently, equality-based challenges that compared the legal treatment of lesbian couples who conceive using donor insemination with heterosexual couples who conceive using the same method, forced five provinces to create gender neutral birth certificates that permit two women to be listed on a child’s birth certificate at birth. Finally, in a recent Ontario case brought by two lesbian mothers and their donor “dad”, it was declared that a child could have three legal parents.

While these victories have improved the legal framework for lesbian parenting, they are by no means complete solutions. Second parent adoptions still rely on the consent of the biological mother (and the biological father in the case of a known donor), involve a waiting period, usually require hiring a lawyer, and cost several thousand dollars. The waiting period and the ease with which biological mothers can withhold or withdraw consent leave nonbiological mothers particularly vulnerable. Nor is the new birth certificate without problems. First, the value of birth certificates as actual proof of legal parentage is unclear. Second, they can only be used when a child is conceived via anonymous donor sperm. This latter fact points to the failure of the current system to define the rights or responsibilities (if any) of known sperm donors. Even Ontario’s three parent decision proves unhelpful on this issue, as the mothers chose to put the donor on the child’s birth certificate and thus avoided the question of whether he would be a legal parent in a contested case.

In 2005, I interviewed 49 lesbian mothers living in B.C. and Alberta about their parenting experiences. Three issues emerged. First, the women were frustrated by the law’s failure to automatically recognize both mothers as legal parents. They were particularly concerned with the ongoing vulnerability of non-biological mothers. Second, the women felt that law should be capable of recognizing more than two legal parents (or only one legal parent) provided that was the arrangement to which the parties had agreed. Finally, and in light of the increased emphasis on the rights of biological fathers, the mothers wanted the law to clarify the rights and responsibilities (if any) of known donors.

While they supported expansion of the legal family to include a donor when that was what the parties had agreed to, they also wanted the ability to exclude a donor in situations where he was not intended to parent.

Reflecting their key concerns, most mothers supported a law reform model that combined parental presumptions grounded in the intentions of a couple (or the primary parent), with opt-in mechanisms that allowed the family, with the consent of the primary parent(s), to expand beyond the nuclear model. The presumptive elements would grant couples or individuals automatic and full legal protection as parents in situations where they have, by mutual agreement, conceived a child using third party gametes, such as donated sperm. In other words, biological assumptions are decentred, and intention becomes the focus. Then, the opt-in procedures would allow additional parents to opt-in to the legal family with the consent of the presumptive parents. Through the opt-in mechanisms the two parent lesbian family remains central, but becomes one of several options.

Key Decisions in Same-sex Parenting Cases:

• A.A. v. B.B. (2007): Decision by the Ontario Court of Appeal declares that a child can have three legal parents.
• M.D.R. v. Ontario (Deputy Registrar General) (2006): Decision that allowed two mothers (biological mother and her partner) to be recognized as co-parents. “Defining legal parenthood within lesbian headed families has emerged as one of the most contentious issues within modern family law.”

Fiona Kelly is a Ph.D. Candidate. She wishes to thank Susan Boyd for her editing assistance.