As the old saying goes, “and baby makes three.” The numbers were updated in Ontario, however, when the province’s appeal court ruled that a child had three legal parents, hence, baby made four. This groundbreaking 2007 case, called AA v. BB, brought the law into step with the modern family and modern reproductive technology. It also opened the door to some puzzling legal questions.
In the past, the only way to be someone’s “parent” in the eyes of the law — apart from going through the adoption process — was to be the biological mother or father. The decision in AA v. BB broke free from these restrictions. A unanimous panel of judges ruled that even though the Children’s Law Reform Act talks about “the father” and “the mother” (so there can only be one of each, and they must be of opposite sex), this statute was written before the acceptance of same-sex parents and the capabilities of reproductive technology came on the radar screen. Accordingly, the court re-interpreted the legislation to allow for same-sex parents, as well as the opportunity for more than two parents.
The case involved a lesbian couple who were provided with sperm by a close friend. As per usual, the birth mother and birth father were listed as “the mother” and “the father” on the statement of live birth. But all of them wanted the birth mother’s partner to be legally recognized as a parent. (Adoption wouldn’t work, because adoption only allows for two parents.) As the court noted, the child was “obviously thriving in a loving family,” and the non-biological mother was a daily and consistent presence in his life, fully committed to a parental role. Furthermore, she had the full support of the two biological parents, who themselves recognized her equal status with them. So, the court ruled it was contrary to the child’s best interests to be deprived of the legal recognition of one of his mothers.
Being a legal parent is a big deal. It has great symbolic value, and as the appeal court noted, a declaration of parentage confers all the rights and obligations of a custodial parent, and more. For example, a declared parent’s consent is required for any future adoption; the declaration of parentage determines lineage; the declaration ensures the child will inherit on intestacy; the declared parent can obtain an OHIP card, a social insurance number, airline tickets, and passports for the child; the declared parent’s Canadian citizenship will pass to the child even if born outside of Canada; the declared parent may register the child in school; and the declared parent may assert rights under various laws such as the Health Care Consent Act. In short, as the appeal court went on to quote from one of the submissions made before it: “A declaration of parentage provides practical and symbolic recognition of the parent-child relationship.”
The AA v. BB ruling produced an important legal concept which has become the cornerstone of fertility law as it pertains to things like surrogacy and sperm or egg donation. It is the idea that intention, not just biology, is a legally acceptable way of determining parentage. Thus, if all parties intend it, it’s possible to take sperm from A, egg from B, gestate the fetus in C, and ultimately obtain a court declaration that D and E are the parents. It is not yet known how far this mix-and-match concept could go in Ontario. For example, if everyone intended it, would a court ever declare everyone in the above scenario — A,B,C,D and E — to be legal parents?
In any event, it is certainly well-settled that a child can have three parents, and that intention is reason enough to make it so. This, in turn, raises some interesting questions. For example: what is the precise nature of each declared parent’s child support obligation? Are there three Table Amounts of child support in play? Would a child with three (or more) parents be entitled in law to more support than if there were only two parents? Stay tuned.
Bill Rogers is a Toronto lawyer and blogger covering family law and fertility law issues, and a columnist for the Medical Post covering the law of malpractice. He can be contacted at www.rogersfamilylaw.com