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Boy has three parents, Ontario court rules
BY ROBIN HILBORN, Family Helper editor
(Jan. 9, 2007) Ontario's highest court says that an Ontario boy can have three parents. The Ontario Court of Appeal ruled on Jan. 2, 2007 that the boy can have a legal father and two legal mothers.
Canada's first official three-parent family includes a biological father (B.), a biological mother (C.) and a second mother (A.), the lesbian partner of C. A., a lawyer in London, Ont., and C., a university professor, had a child in early 2001 using a long-time male friend as sperm donor. (Names are withheld to protect the identities of those involved.)
A STABLE UNION
Since 1990 A. and C. have been in a stable same-sex union. In 1999 they decided to start a family with the help of their male friend B. While the two women would be the primary caregivers, they wanted B. to be involved in the child's life, and he agreed. (He sees his son, now five years old, twice a week.)
The boy refers to A. and C. as his mothers and enjoys a nurturing family life. A Superior Court judge found in 2003 that "the child is a bright, healthy, happy individual who is obviously thriving in a loving family that meets his every need. The applicant has been a daily and consistent presence in his life. She is fully committed to a parental role. She has the support of the two biological parents who themselves recognize her equal status with them."
The partner of the boy's biological mother had gone to court seeking to also be declared a mother of the boy, giving him two legal mothers. They did not apply for an adoption order because, if they did, the father would lose his parental status under Ontario's Child and Family Services Act, s. 158(2). All three adults are part of the boy's life and now are legally recognized.
A. argued that making her a parent was the only way to fully participate in the child's life. If the boy's birth mother were to die, A. couldn't take part in decisions on his behalf. "Perhaps one of the greatest fears faced by lesbian mothers is the death of the birth mother," the appeal court heard. "Without a declaration of parentage or some other order, the surviving partner would be unable to make decisions for their minor child, such as critical decisions about health care."
Now that A.'s motherhood is recognized, she has all the rights and obligations of a custodial parent. The court gave a summary of the importance of a parentage declaration:
It's the first time in Canada that a birth certificate will show three parents. See the text of the ruling at Court of Appeal for Ontario (Toronto), A.A. v. B.B., 2007 ONCA 2, 20070102, C39998. The ruling can be appealed to Canada's Supreme Court.
In its Jan. 3, 2007 report Canadian Press said the appeal court judges also ruled that Ontario law -- the Children's Law Reform Act -- does not reflect current society, and moreover fails to provide for the best interests of the child in this case. (The Act considers a child to have only one mother and one father.) "The possibility of legally and socially recognized same-sex unions and the implications of advances in reproductive technology were not on the radar screen. The Act does not deal with, nor contemplate, the disadvantages that a child born into a relationship of two mothers, two fathers or as in this case two mothers and one father might suffer," the judges said.
"There is no doubt that the Legislature did not foresee for the possibility of declarations of parentage for two women, but that is a product of the social conditions and medical knowledge at the time," the judges wrote. "The Legislature did not turn its mind to that possibility, so that over 30 years later the gap in the legislation has been revealed."
"Present social conditions and attitudes have changed," the court said. "Advances in our appreciation of the value of other types of relationships and in the science of reproductive technology have created gaps in the ... legislative scheme. Because of these changes the parents of a child can be two women or two men. They are as much the child's parents as adopting parents or "natural" parents. [Legislation], however, does not recognize these forms of parenting and thus the children of these relationships are deprived of the equality of status that declarations of parentage provide."
The court wrote, "Advances in reproductive technology require re-examination of the most basic questions of who is a biological mother. For example, consider the facts of M.D.R. v. Ontario (Deputy Registrar General). M.D.R. involved a case where one lesbian partner was the gestational or birth mother and the other partner was the biological mother, having been the donor of the egg."
In the mid-nineties, the Ontario Court of Appeal ruled that two lesbians, one of whom was the birth mother, could be recognized as a child's parents. (The father was an anonymous sperm donor.) In June 2006 an Ontario judge struck down a law that barred lesbian couples from registering as parents of babies conceived through artificial insemination.
THE MODERN FAMILY
The ruling by the Ontario Court of Appeal reflects changing social conditions in the 21st century, which have been moving away from the traditional view of a family as "a married man and woman with at least one child." Besides the traditional family we now have many other kinds ... single-parent, blended, same-sex, adoptive, foster and now, three-parent.
Today, just four in ten families fit the traditional nuclear mould, according to the Ottawa-based Vanier Institute of the Family. For more on the definition of a family, see "Many ways to make a family".