Having or not having three parents
According to media coverage, our Court of Appeal has ruled that Quebec law does not allow a child to have three parents. However, whether it is appropriate or not for Quebec to follow Ontario and British Columbia in recognizing this possibility, the case before the Court of Appeal really did not address this issue. Among other things, the judgment confirmed the effects of our AHR regime.
The case concerns two lesbian wives who decide to have a child with the help of a man. As expected, both women register on the birth certificate. They become the parents of the child in the eyes of the law. As for him, the man is involved in the life of the child.
The three sign an agreement that takes note of their arrangement.
The parent who has not given birth to the child is transitioning to become a trans man. The breakup of the couple follows. Things are turning sour. The sperm donor is no longer the only man or only "daddy" in the child's life and he is not happy about it. With the support of the woman who gave birth to the child, the sperm donor claims paternity of the child.
At first instance, the judge upholds the claim. He names the sperm donor father of the child and he erases the second parent from the birth certificate. On appeal, the Court restores the initial situation: it is the former spouse of the woman who gave birth to the child who is the second parent. The Court is careful to distinguish the rules of parentage, which determine the child's kinship, parenthood, parental behavior and the exercise of certain attributes of parental authority. She reminds us that the involvement of the sperm donor
in the life of the child of which he was the father does not confer paternity.
From a careful reading of the judgment, I retain three observations.
First, the presence of a trans person in the family landscape does not change anything in the application of the rules of descent. The Court of Appeal makes that clear. The discomfort with a transition, not to mention transphobia, has no legal significance.
Then, next to the rules of parentage, there is a large space for parent figures in a child's life. We experience it every day in the case of stepfamilies. The judgment reminds us that it is the same thing when it is a lesbian couple (or a single person) who has a child with the help of a known donor. The true parents of a child born as a result of assisted procreation are those who are identified by the rules of filiation. In this context, it is the intention of adults that prevails, not biology.
Finally, despite all that has been said about the issue of three parents, the Court of Appeal refrained from ruling on it. Moreover, she has been more cautious and far less categorical about this issue than in some of her judgments.
In short, the judgment of the Court of Appeal does not modify Quebec law. It illustrates some of the implications of the great reform of 2002, in which the legislator enshrined the legitimacy and veracity of the filiation that follows assisted procreation. It's a fair decision.
The case concerns two lesbian wives who decide to have a child with the help of a man. As expected, both women register on the birth certificate. They become the parents of the child in the eyes of the law. As for him, the man is involved in the life of the child.
The three sign an agreement that takes note of their arrangement.
The parent who has not given birth to the child is transitioning to become a trans man. The breakup of the couple follows. Things are turning sour. The sperm donor is no longer the only man or only "daddy" in the child's life and he is not happy about it. With the support of the woman who gave birth to the child, the sperm donor claims paternity of the child.
At first instance, the judge upholds the claim. He names the sperm donor father of the child and he erases the second parent from the birth certificate. On appeal, the Court restores the initial situation: it is the former spouse of the woman who gave birth to the child who is the second parent. The Court is careful to distinguish the rules of parentage, which determine the child's kinship, parenthood, parental behavior and the exercise of certain attributes of parental authority. She reminds us that the involvement of the sperm donor
in the life of the child of which he was the father does not confer paternity.
From a careful reading of the judgment, I retain three observations.
First, the presence of a trans person in the family landscape does not change anything in the application of the rules of descent. The Court of Appeal makes that clear. The discomfort with a transition, not to mention transphobia, has no legal significance.
Then, next to the rules of parentage, there is a large space for parent figures in a child's life. We experience it every day in the case of stepfamilies. The judgment reminds us that it is the same thing when it is a lesbian couple (or a single person) who has a child with the help of a known donor. The true parents of a child born as a result of assisted procreation are those who are identified by the rules of filiation. In this context, it is the intention of adults that prevails, not biology.
Finally, despite all that has been said about the issue of three parents, the Court of Appeal refrained from ruling on it. Moreover, she has been more cautious and far less categorical about this issue than in some of her judgments.
In short, the judgment of the Court of Appeal does not modify Quebec law. It illustrates some of the implications of the great reform of 2002, in which the legislator enshrined the legitimacy and veracity of the filiation that follows assisted procreation. It's a fair decision.
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