Academic

Quebec?s ?parenting project? ? a law like nothing we have in the US

By Nancy Polikoff

Thanks to McGill law professor Robert Leckey, for his article in English analyzing a Quebec law that went into effect in 2002, at the same time the province instituted civil unions. (Marriage for same-sex couples was not yet legal in Canada). This parentage law (they call it “filiation”) makes it possible for a lesbian couple to be the legal parents of the child born to one of them from birth, without the non-biological mother having to adopt the child.

The new statute begins:

The person who contributes the genetic material does not become a parent. If the woman has no partner, she is the sole parent. The term “spouses” is not limited to married couples but also includes civil union couples and unmarried couples who decide to parent together. The couple registers as the child’s parents by “declaring” themselves to an administrative agency.

Now here is the truly unique aspect of this statute. It provides for assisted conception through sexual intercourse. There are US cases where conception occurred through sexual intercourse and someone later claimed that it was understood that the sex was a form of assisted conception not intended to create legal parenthood. No American court has bought this argument, even when the two people had a written agreement. But Quebec explicitly provides for this.

The only legal difference when conception occurs through sexual intercourse is that during the first year of the child’s life the man’s parentage can be established, and this will disestablish a female partner’s parentage. Leckey notes scholars who have pointed out that if the purpose of the law is to allow a man to change his mind then the class of those eligible to claim parentage during the child’s first year would logically be all donors known to the mother, including known semen donors, rather than only those who participate in conception through sexual intercourse.

The statute does not contain the ability to recognize three persons, the mother, her partner, and the biological father, as a child’s parents. (An appeals court in Ontario, Canada, interpreting that province’s statutes did recognize that a child had three parents in a 2007 case.)

I’m working on developing model parentage legislation that would obviate the need for a lesbian to “adopt” her own child born to her partner. I’ll be presenting the product of my work at a Stanford Law School symposium in February. You can bet I’ll be talking about the Quebec statutes!

–Nancy Polikoff

crossposted from Beyond Straight and Gay Marriage

Full post as published by Feminist Law Professors on December 17, 2008 (boomark / email).