Where+the+Parents+Are+of+the+Same+Sex

// Where the Parents are of the Same Sex: Quebec’s Reforms to Filiation // – Leckey __ Short Summary: __ This article considers the amendments made to Quebec’s filiation regime in 2002, to allow for recognition of same sex couples as a child’s parents from birth and not only from adoption. · Filiation is the legal relationship connecting a child to her mother of father, and is also the bond of kinship linking a person to his or her ascendants · In one sense, filiation can be seen as ordering a child’s fate, but also as a means of tending to practical matters such as who must care for the child, to whom the child owes certain obligations etc.  ·  Filiation has often been portrayed as an institution, however, this institution underwent significant change in 1980 when the notion of illegitimacy was abolished by the legislature of Quebec – the distinction between legitimate and illegitimate filiation was replaced by filiation by blood · The traditional understanding of filiation is that it is declarative; a juridical link that must coincide as much as possible with biological reality · However, filiation by blood is in fact a juridical construct – family peace or other interests are given greater importance than biological reality in some instances · Whether genetic or not, filiation’s most important effect is parental authority. The principal attributes being custody, supervision, maintenance, and education. // A. Quebec’s Amendments // · The amended regime was part of an effort to provide a civil status for same sex couples · The legislature inserted a new chapter between those on filiation by blood and filiation by adoption, on filiation of children born of assisted procreation · The chapter sets out that no bond is created between the child and the donor of genetic material · 2 important features of the chapter are the statement that a person alone may have a child with the genetic material of another, which supports the single parenthood. And secondly, the chapter states spouses in a third-party parental project may be of the same-sex · In addition to the primary reference of the regime to the intention of the parties to a parental project, a presumption of parenthood is set up in favour of the birth mother’s legal partner · The legislature also shifts from medially assisted procreation to assisted procreation, which encompasses more methods by which same-sex couples may acquire genetic material from a third party · One awkwardly drafted provision of the new regime allows that a bond of filiation may be established if the genetic material is provided by way of sexual intercourse · An addition to the chapter on adoption was to clarify that two persons of the same-sex may adopt a child // B. A Contrast with Common Law Developments // · Canadian common law provinces have shown greater activity in the judicial realm, rather than legislative · // Rutherford v. Ontario // : The court allowed for the registration of two persons of the same sex on a child’s birth record and found that to prevent same sex couples from doing so would be contrary to s. 15 of the Canadian Charter · This decision is limited to voluntary declarations of parenthood and does encompass a presumption of parenthood as does the Quebec regime · // AA v. BB // : The court allowed for three parties to be registered on a child’s birth record, the birth mother, the genetic father and the birth mother’s same sex partner · Quebec’s regime intends to recognize parenting by same sex couples, but not by three individuals or more · Legal scholars have critiqued the 2002 reforms for perturbing filiation’s genealogical and biological vocations // Biology and the Heritage of Legitimate Filiation // · Arguments have been made that filiation is important genealogically important for situating a child in a lineage, and that filiation to a same sex couple creates uncertainty for the child as to their lineage and attachment to the human species · Critics who argue that filiation by blood is predicated on naturalness, have objected to the regime’s move away form biology · Some scholars suggest that it may have been a more appropriate amendment to recognize a parent figure of the same sex as the child’s parent without giving both parents parental status · The critique that the 2002 amendments shift too far from the traditional schema of filiation, which sought to replicate ‘natural procreation’ or biology is somewhat contradictory o Originally, there was such significant concern over having an illegitimate child that the biological reality was in some cases overruled in order to make the child legitimate o After the 1980 reforms which did away the notion of illegitimacy, there are still instances where family unity or other interests take precedent over biology o So it is in fact a difficult critique to make that filiation has always favoured the search for biological truth // Taxonomy Troubles // · The placement of the chapter on assisted reproduction reveals the legislative understanding of its characterization and meaning · One view is that there are only two modes of filiation: blood (which now includes assisted procreation) and adoption · Another understanding is that assisted reproduction is a means of establishing filiation separate from the other two modes · The new chapter’s location hints that its substance lies closer to filiation by blood than to adoption · The 2002 regime creates an original filiation that is patently fictitious – assisted procreation seems to be halfway between filiation by blood and adoption because it blends blood and volition · There has been a lawyerly critique made about the incoherence of a fictitious original filiation being added to the CCQ– however, these critics should remember that the dichotomy between filiation by blood and adoption as an organizing device dates only from 1980 · One way of understanding the 2002 amendments is that they underscore the messy way in which the institution of filiation, in its various legislative incarnations, has always intertwined fact and fiction, given and constructed elements of kinship · Legislatures and scholars should show greater awareness that family law maintains an arm’s length relationship with the natural world · Biological truth should not be viewed as an end in itself, it is a part of the bigger picture of relationships, memories and experiences · There may be something fundamentally unknowable and mysterious about the origins of each of us  ·  New technological intervention in reproduction prompt examination of the constructed elements of legitimate filiation: relational stability, publicly avowed commtment, and intention to parent
 * Filiation: A Fundamental Institution of the Civil Law **
 * The 2002 Reforms **
 * Disputing Filiation’s Vocation **
 * Conclusion **