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. Drawing on traditional family law principles designed for separated opposite-sex couples engaged in custody and access disputes, most judges presume that because the donor is the child's biological father he must be a legal parent. Known donors are equated with divorcing fathers and, applying the maximum contact rule, which has come to dominate Canadian custody and access decision-making, (6) the best interests of the child is assumed to be met via a relationship with the "other parent"--the biological "father"--rather than through the preservation of the existing parental and family relationships. Lesbian couples and SMCs are even accused of acting "selfishly" for wanting to protect the boundaries of their family and, in the case of a lesbian couple, the integrity of the non-biological mother's role as a parent. As a result of the judicial preference for biology over pre-conception intention, known donors who have sought legal parentage and access rights to children being raised by lesbian couples or SMCs are frequently successful, with judges concluding the donor is a legal father and the child's best interests are served via regular access. (7)
As Angela Campbell has argued, judicial prioritization of biology over preconception intention is odd given that assisted conception necessarily de-centres biological connection:
In circumstances involving assisted reproduction, identifying biology as a basis for [parentage] seems perplexing, given that the point of using reproductive materials or services from third parties is to acquire parental status even where one cannot rely (or chooses not to rely) on biological/'natural' methods of procreation. Thus, locating parenthood should command more than tracing a child's genetic heritage. (8) What is perhaps at the heart of the judicial inclination to turn to biology, despite the use of assisted conception, is the perception that a woman-led family is incomplete. Thus, rather than focusing on the fact that children of lesbian couples and SMCs are being raised in stable, intact, (sometimes married) families, judges reconfigure lesbian and SMC families into heterosexual ones in which the biological parents have separated. The result is that lesbian and SMC families are denied the legal security typically afforded to intact heterosexual families who use assisted reproduction. Third parties, in the guise of "parents," are inserted into women-led families, diminishing the relationship between the child and his or her non-biological mother, and often providing the non-biological mother with no legal status at all.
In this article, I argue that lesbians and single women should be able to create families of their choice and, in the event of legal challenge, have a reasonable expectation that the courts will preserve the integrity of their family unit. To enable this, legislative reform prioritizing intention over biology in the assisted reproduction context, as it already does when the couple conceiving is heterosexual, is needed in every Canadian province. In addition to legislative reform, and especially in its absence, the article also argues that children's best interests are served by ensuring that all children enjoy the same level of family stability and security, independent of their family structure and/or method of conception. Many legal battles between lesbian couples and their donors involve not only parentage claims, but also disputes over access which turn on what is in the best interests of child. In order to prevent discrimination on the basis of method of conception and/or the structure of the family into which the child is born, the best interests test must be interpreted in a manner consistent with children's section 15 equality rights under the Canadian Charter of Rights and Freedoms. (9) Most importantly, a child conceived via assisted conception and born into a woman-led family should have no less a right to a secure and stable family life than a child similarly conceived and born to heterosexual parents.
The article begins with an overview and critique of Canadian legal parentage disputes between lesbian or single women and their known sperm donors. It highlights the ways in which the current legal framework, which in most provinces includes an absence of modern parentage laws, results in judges applying a traditional and outdated mode of analysis in a manner that undermines the autonomy and integrity of women-led families. Recognizing that law reform in this area must be multi-pronged, the remainder of the article considers provincial statutory reform, as well as recommendations as to how judges might interpret the best interests of the child test in a manner that protects the stability and security of all Canadian children, not just those born into traditional heterosexual families.
THE EXISTING CASE LAW: A TRIUMPH OF BIOLOGY
Like most jurisdictions, Canada now has a small number of cases involving lesbian couples and SMCs that expressly address parentage in situations of assisted conception where the sperm provider is known. Despite the low numbers, clear trends have emerged. Known donors have been declared parents in all but two applications, and judges have uniformly expressed the belief that it is in a child's best interest to have access with his or her biological father, independent of the circumstances of conception or structure of the child's family. Judges have been dismissive of any suggestion that the imposition of a donor on an intact family may be damaging to the parent(s) or child. Scholars from other common law jurisdictions have demonstrated that these trends are by no means unique to Canada. (10) Nor should they be understood as separate from Canadian family law trends more generally. Finding fathers for children raised by lesbian couples or SMCs is part of a much larger trend towards prioritizing and maximizing father/child contact, even in circumstances where the father has a limited, or even quite negative, (11) relationship with...