SAME SEX FAMILIES: Will it work?

A recent Ontario Court of Appeal decision granted a declaration to one of the mothers of a child whose parents are living together as a lesbian couple that the mother can have custody of the child. The biological father was also given parental rights, notwithstanding the fact that the father of the child doesn’t live with the child, the child’s mother and her lesbian partner.

Let me state from the onset that I can see no valid reason why the child can’t live with its mother when the mother is living with her lesbian partner. That reasoning also applies to the father of a child who is living with a homosexual partner. A lesbian or homosexual parent of a child can love his or her child just as much as heterosexual parents do.

The courts in Canada have recognized that same-sex families are like heterosexual families in the ways that are relevant to spousal support and marriage, because the parents of lesbian and homosexual couples have these rights under the protection of section 15 of the Canadian Charter of Rights. Specifically, subsection 1(b) of section 15 states that in a general sense, there has existed and shall continue to exist in Canada a right in every person to equality in law no matter what a person’s race, national origin, colour, religion or sex may be.

It follows that if a person can have a religious preference, then that same person can have a sexual preference. What this means is that no person shall be in either a more or less advantageous position than any other person.

As an example, if the mother of a child is a lesbian and the father of the child is heterosexual, their sexual preferences are of no consequence to the court. What is paramount is what is in the best interests of the child. As a rule, the courts tend to lean towards giving orders that the children live with their mothers. That reasoning has nothing whatsoever to do with whether a father can rear a child. Many do and do a fine job. It’s just that small children need mothering and that is best done by mothers.

The recent Ontario Court of Appeal decision was an interesting one because the case was so unusual. AA was CC's same-sex partner. BB was a friend of the couple, who assisted them in starting a family by asking BB to provide CC with the sperm. CC was the biological mother of the child. AA has been a daily and consistent presence in her life. She was recognized as being fully committed to a parental role. She had the support of the two biological parents who themselves recognized her equal status with them. The parties agreed AA and CC would be the primary caregivers for DD, and the child referred to them as her two mothers. All parties wanted AA's status as DD's mother recognized, to give her all the rights and obligations of a custodial parent even though she wasn’t the biological mother. While the judge found DD was thriving in a loving family that met all her needs, and considered AA a fully-committed person in DD's life whom the child recognized on an equal status with her biological mother, the judge found he lacked jurisdiction to declare AA a parent on equal footing with BB and CC. AA then raised constitutional issues for the first time on appeal from the judge's decision. That’s when the Court of Appeal decided to hear the case.

There was a genuine concern on AA’s part because one of the greatest fears faced by lesbian mothers is the death of the birth mother. Without a declaration of parentage or some other similar order, the surviving partner would be unable to make decisions for their minor child, such as critical decisions about health care and the minor child may be taken from her. That alone would be traumatic for both the non-birth mother and the child who is equally emotionally attached to her.

What was persuasive was an affidavit written by the twelve-year-old daughter of the birth mother. In her affidavit she said;

“I just want both my moms recognized as my moms. Most of my friends have not had to think about things like this ---- they take for granted that their parents are legally recognized as their parents. I would like my family recognized the same way as any other family, not treated differently because both my parents are women.”

Obtaining a court order which would recognize AA as the child’s mother also was necessary because the non-birth mother who cannot be named as a parent on the child's birth certificate, would be unable to produce evidence of her relationship to the child unless she has taken steps to obtain a Family Court parenting order or some form of written authority from the birth mother. If she didn’t obtain such an order and the birth mother died, and the child needed emergency medical treatment, AA would not have the authority to give permission for the doctors to give that emergency medical treatment.

In my opinion, the court’s decision was a sound one. We are in an era where we have to accept that our styles of living are in flux, always moving in various directions. If a child is happy having two mothers who are lesbians and a father who is not, who are we as a society to say that this is wrong?

What must be taken into account are the wishes of the child. If the child recognizes her non-birth mother as an equally partner with her birth mother in bringing her up, then society should step back and let this family live their lives in continued harmony.

Of course, with that decision comes responsibility. If the two women separate, the birth mother can legally look to her former lesbian partner for assistance in child support. Had AA not obtained the order in her favour, and the two women separate, the birth mother may otherwise be faced with the problem of claiming child support from her former partner.

Modeling the modern-day family strictly as a heterosexual family may appear to support natural law by showing that there are no constants of human behavior. But in our era, we are forced to recognize the interdependent functions ("my happiness depends on yours") within families that are themselves the result of constant biological interaction.

In a situation where the parents are heterosexual, each parent treats the welfare of the child as though it were one half of its own. That feeling may not be the same with respect to lesbian or homosexual parents. However, emotions are not just inside the realm of biological influence; they are heavily dependent on it no matter where its source stems from. The love and affection that binds parents together, be they lesbian, homosexual or heterosexual improves the long-term fitness of both, given their common stake in the future, ie; the welfare of their child as he or she grows up.

Whatever these differences in level of parental support, sometimes even today's parents have difficulty in regarding other people's children as just like their own—hence, the enormous pains and cost that people are prepared to take in order to have a baby via a surrogate mother instead of through ordinary adoption.

Despite this, it is also just as likely that there are people who will treat the children of other parents as if they were their own. Ask a child of a foster mother who treated the child as if the child was her own.

In summary, I hope that we will see more decisions like the Ontario Court of Appeal made. With the welfare of children being paramount, we can expect no less.