A quiet revolution in family law

For all purposes of the law of Ontario, “a person is a child of his or her natural parents,” except where an adoption order has been made. If a same-sex couple wishes to be recognized as a child’s legal parents, they can either adopt a child together, or one of them can have a child with a third party and their partner can apply to court to be declared a parent.

Opposite-sex couples can do likewise, but most will have a simpler option. When a woman has a child, her husband or common-law partner is (absent contrary evidence) presumed to be the child’s father, and both can simply register as the parents. Neither must go to court.

This difference between same-sex and opposite-sex couples is derided by some as discriminatory and unjust. But it does not arise out of any irrational animus toward LGBT persons, but from the real biological difference between opposite and same-sex couples. Every child has a father and mother. At least one of any two same-sex partners wishing to be parents must be an adoptive parent.

Unless, that is, we throw out the traditional categories of natural and adoptive parents. The Ontario Liberals’ Bill 28, the All Families Are Equal Act, would do exactly that. A final vote is likely to happen soon.

Bill 28 erases the basic, core rule of our law that a person is the child of her natural parents and deletes all references to “mother,” “father,” and “natural parents” from Ontario statutes, replacing them simply with “parent.” It also removes references in some statues to persons being related “by blood,” while expanding its meaning in others to include new forms of legal family relationships that are not, in fact, blood relationships.

With natural parentage and blood relations so reduced in legal significance, it should not surprise us that the bill also moves beyond couples as the basic family unit. It removes the presumption in law that a child has only two parents and permits multiple people to enter into “pre-conception parentage agreement” (PCPA). Up to four unrelated and unmarried adults can sign a contract entitling them to be legal parents to a child without being biological parents, applying to court for declarations of parentage, or adopting.

In response to criticism and questions about the bill, the Liberal government, in a standard form letter, makes two main points. First: “In the year 2016, there’s no one way to start and raise a family.” Second: “Our bill will update Ontario’s parentage laws so that parents who have a baby with the help of a doctor don’t need to spend their money going to court just so they can be their own kid’s parents.”

“It’s 2016” isn’t an argument. It’s more of an insult. It implies that those concerned about or opposed to this looming revolution in family law are benighted and backwards, perhaps even bigoted. As for the refrain that Bill 28 is about allowing people to be legally recognized as parents of “their own kids,” that is pure question-begging. What is it that makes a child “contemplated” by a “pre-conception parentage agreement” or surrogacy agreement the intended parents’ “own kid,” other than their signatures? How do we know if being shared by up to four unmarried and unrelated “parents” is in a child’s best interest, especially when such an arrangement need not be approved by a court?

Will the child rotate between four homes? Who will make decisions about the child’s health and education? It can be difficult enough for a married couple to reach such decisions. And when a child’s natural parents separate, such issues often need to be sorted out in court. Yet Bill 28 creates separated families by design, with more “parents,” and without requiring any prior agreement on how the child will be cared for.

How could such a bill have gone mostly unopposed in the Legislative Assembly? How could it have been reviewed so quickly by the committee? The bill’s proponents branded this a “human rights” and “equality” bill — a characterization which has largely gone unchallenged, even by the bill’s critics. But do I really have a right to be the parent to a child who is not my natural child? Am I really treated unjustly because I must apply to a court to be so recognized?

The law’s stated primary concern — and what ought to be the primary motive for adopting — is the good of the child. To the extent that there are legitimate concerns about the difficulties of adoption, the government could remedy those without revolutionizing family law. Bill 28, however, is by the government’s own admission about making it easier to become parents, even while it raises fundamental questions about what it means to be a parent.

With respect, it is not Bill 28’s critics, but its proponents, who have things backwards.