Law needs to keep up with lesbian families

In 1996, New York University sociology professor Judith Stacey described the lesbian family as “the pioneer outpost of the post-modern family.”

But, as UBC assistant professor of law Fiona Kelly points out in her new book, Transforming Law’s Family: The Legal Recognition of Planned Lesbian Motherhood, the law has yet to fully catch up to Stacey’s observation, even as the concept of the family unit has changed markedly.

Families headed by lesbian couples are one of several family forms confronting traditional norms, Kelly notes.

“In Canada, just over one third of children are being raised in homes that do not resemble the married, nuclear, heterosexual norm,” she writes. “In fact, the sharp rise in divorce, single motherhood, stepfamilies, common-law relationships and the use of assisted reproductive technologies have made it increasingly difficult to assert that the heterosexual biological family is any longer the norm.”

But lesbian families continue to face stumbling blocks in securing legal status with regard to children, Kelly says.

Canada’s legal framework on the issue is uneven — non-biological mothers are still often treated as second-class citizens or legal strangers to their children, she points out. And the legal status of sperm donors for children in lesbian families remains unresolved.

Courts and legislatures influenced by the fathers’ rights movement and neo-conservative and neo-liberal rhetoric have been generally unwilling to create a framework that treats two-mother families as complete, she says.

“Neo-conservatives respond positively to the [fathers’ rights] movement’s desire to preserve the traditional patriarchal family, while neo-liberals presume that maintaining father/child relationships following parental separation will reduce the economic burden on the state,” Kelly writes.

The growing emphasis on biological fatherhood rights by the courts — even though a sperm donor may have little involvement with a child — is troubling, she says. “The effect of this trend is not only an increase in fathers’ rights, but also a simultaneous diminishing of the significance of mothers’ actual responsibilities for caregiving.”

Meanwhile, non-biological mothers engaged in daily child-rearing can find their parental status denied or diminished, she says.

However, Kelly notes, there are bright points.

She notes Section 538 of the Quebec Civil Code as dealing with the concept of “a parental project,” where gender-neutral language discusses a person alone or spouses by mutual consent deciding to have a child with the genetic material of a third party.

The language treats a single lesbian or same-sex couple in the same manner as a heterosexual couple or a single straight woman who conceives using the same assisted method. The contribution of genetic material does not create any bond between the contributor and a child born of the parental project.

But Quebec is the only province willing to assign legal parentage in this way, Kelly says.

Some other provinces, such as BC, have been court-ordered to implement new gender-neutral birth certificates that make room for the non-biological mother — but only if the sperm donor is unknown.

If the sperm donor is known, he bumps the non-biological mother as the second parent, regardless of his role in the child’s daily upbringing.

“The gender-neutral birth certificate, therefore, does nothing to address the vulnerability of lesbian families vis-à-vis known donors,” Kelly writes.

Overall, Kelly says, the past two decades of successfully challenging their exclusion from family law have put gay and lesbian parents on stronger footing.

While some community members say seeking sameness in the legal domain of the family perpetuates the hierarchies, inequalities and oppressions that characterize its traditional formats, Kelly believes that a lack of formal equality for lesbian families restricts non-biological mothers from carrying out daily parenting tasks, leaving their children more vulnerable and without equal protection of the law.

What is required, she concludes, is a rethinking of how legal parentage is assigned, especially in the context of emerging family models and assisted conception.