Ontario Parenting Decision

The decision from the Ontario Court of Appeals noted here on Wednesday is available here. The case involved a child born to a woman in a same-sex relationship. The child’s father was a friend of the couple. The mother’s partner wanted to establish legal parent status but could not adopt because doing so would require that the father’s parental rights be terminated and the couple wanted the father involved in the child’s life.

The trial judge held that the relevant Canadian legislation (the Children’s Law Reform Act or CLRA), did not allow the result the partner sought. The decision on Tuesday agreed on the relevance of the CLRA, but the court also decided that the judiciary’s general parens patriae authority (the ability of the state to act to protect a minor or someone who is incompetent) allowed the court to create legal parent status for the partner.

The key passage: “Present social conditions and attitudes have changed. Advances in our appreciation of the value of other types of relationships and in the science of reproductive technology have created gaps in the CLRA’s legislative scheme. Because of these changes the parents of a child can be two women or two men. They are as much the child’s parents as adopting parents or “natural” parents. The CLRA, however, does not recognize these forms of parenting and thus the children of these relationships are deprived of the equality of status that declarations of parentage provide.”

This last point is interesting because the court notes earlier in its opinion that the CLRA had abolished any distinction in status based on a child’s legitimacy. Thus, whether a child has one parent or three will have no effect on a child’s “equality of status.” The “equality of status” sought in this case is the status of “parent” sought by an adult who does not qualify under any natural or legal principle for that designation.

The case is quite clearly about the right of adults to have the law recognize any kind of arrangement they devise vis-à-vis children. Since the court felt no discomfort about this three-parent arrangement, it ratified the adult choice, justifying its action by referencing an absolutely limitless power to act in a child’s “best interest.”
posted by William Duncan at 6:32 PM | Link | 4 comments  

Donor 1084

From Self magazine:

". . .In January, Linne joined the Donor Sibling Registry, an online community launched six years ago to help children of sperm donors locate their half siblings, and maybe even their donors. There, Linne exchanged notes with George and two other women who used Donor 1084. All four children suffer from some combination of eczema, allergies and asthma. Kristine Carlson of Bridgeport, Connecticut, says she reported the skin problems of her daughter Emily, then 2 years old, to Fairfax in 2002. Jessica Montgomery of Schaumberg, Illinois, reported her infant Joshua's eczema and food and drug allergies in March 2006. Yet when SELF called to inquire about Fairfax Donor 1084 in April and again in June and asked if there had been any adverse health reports from other parents of his offspring, the customer service representative replied, "No, none at all."

Now the mothers wonder: What else might the sperm bank be withholding about donors and their offspring? "You're never going to get a perfect donor," George says. "Diabetes and heart disease run in my family, so it doesn't anger me that he has health issues. It does anger me that Fairfax knows about them but refuses to inform prospective parents." . . ."

posted by maggie at 9:53 AM | Link | 0 comments  

Donor 1084

From Self magazine:

". . .In January, Linne joined the Donor Sibling Registry, an online community launched six years ago to help children of sperm donors locate their half siblings, and maybe even their donors. There, Linne exchanged notes with George and two other women who used Donor 1084. All four children suffer from some combination of eczema, allergies and asthma. Kristine Carlson of Bridgeport, Connecticut, says she reported the skin problems of her daughter Emily, then 2 years old, to Fairfax in 2002. Jessica Montgomery of Schaumberg, Illinois, reported her infant Joshua's eczema and food and drug allergies in March 2006. Yet when SELF called to inquire about Fairfax Donor 1084 in April and again in June and asked if there had been any adverse health reports from other parents of his offspring, the customer service representative replied, "No, none at all."

Now the mothers wonder: What else might the sperm bank be withholding about donors and their offspring? "You're never going to get a perfect donor," George says. "Diabetes and heart disease run in my family, so it doesn't anger me that he has health issues. It does anger me that Fairfax knows about them but refuses to inform prospective parents." . . ."

posted by maggie at 9:53 AM | Link | 2 comments  

Ontario Court Rules: Boy Has 3 Legal Parents

Jan 3, 2007 Canadian Press:

"An Ontario boy can legally have two mothers and a father, the province's highest court ruled Tuesday.

The same-sex partner of the child's biological mother went to court seeking to also be declared a mother of the boy. After hearing arguments in 2003, Superior Court Justice David Aston dismissed the application saying he didn't have the jurisdiction to rule in the case. Court was told the child has three parents: his biological father and mother (identified in court documents as B.B. and C.C., respectively) and C.C.'s partner, the appellant A.A.

A.A. and C.C. have been in a stable same-sex union since 1990. In 1999, they decided to start a family with the assistance of their friend B.B. . . .

The Children's Law Reform Act does not reflect current society, the appeal court judges ruled.

"There is no doubt that the Legislature did not foresee for the possibility of declarations of parentage for two women, but that is a product of the social conditions and medical knowledge at the time," they wrote. "The Legislature did not turn its mind to that possibility, so that over 30 years later the gap in the legislation has been revealed."

As a result, the statute does not provide for the best interests of the child in this case, the judges said.

"The Act does not deal with, nor contemplate, the disadvantages that a child born into a relationship of two mothers, two fathers or as in this case two mothers and one father might suffer."

posted by maggie at 11:15 PM | Link | 7 comments  

Massachusetts Miracle

The Boston Globe is reporting that the proposed Massachusetts marriage amendment did get a vote today and will advance to the next session. The vote was 132-61 but only 50 votes in favor were needed for the amendment to advance. Great news for Massachusetts, for marriage and for the rule of law.

UPDATE: Boston Globe calls the vote a "shameful reversal of rights." The Gov.-elect urged legislators not to vote, calling a failure to vote a "question of conscience" (in spite of the supreme court ruling that legislators had a "clear consittutional duty" to vote on the amendment. They can vote no, of course.
posted by William Duncan at 2:47 PM | Link | 34 comments  

Oregon Court Ruling: What's in a Name?

More on the complications of nonmarital life in The Oregonian, Jan 1, 2007:

". . . .The girl was born April 8, 2004, to Christy M. Wizner and Chad M. Doherty, who were not married.

Wizner, now 30, decided her daughter should have the same last name as her three other children. Doherty, now 31, wanted the girl to have his surname, arguing that "Wizner" is not ancestral but rather the name of the mother's former spouse.

Lawyers were retained.

Legal proceedings were commenced. . .

Morrow County Circuit Judge Jeffrey M. Wallace said the standard for settling such a dispute was unclear, but he decided that it seemed prudent to follow the custom of naming the child after a parent the child is related to "by blood."

Wizner appealed, and on Dec. 27 -- more than two years later -- the Oregon Court of Appeals weighed in.
. . .In the latter half of the 20th century, however, the law shifted "away from the interests of the parents to a focus on the best interests of the child," he wrote.

Under this doctrine, neither parent has an advantage.

"The right to name a child is a privilege belonging equally to both parents. Courts across this country have set aside those naming practices of the past that endorse presumptions and preferences that favor one parent over another based upon marital status, gender, or custodial designation, because such presumptions and preferences are not consistent with determining the best interest of the child."

So what is in the best interest of the Heppner girl? . . .

In the end, the court concluded that two key factors -- the reasonable preference of the custodial parent and the avoidance of confusion or embarrassment -- outweighed giving the girl her father's last name.

"We recognize that having a surname different from the noncustodial father's surname can have an impact on the relationship that the noncustodial parent has with the child. Historically, many courts would require children to take the noncustodial father's surname as a means of maintaining a connection between father and child, Harris wrote.

But "in the final analysis," Harris wrote, "development of a bond between father and daughter will depend on the love and devotion that father exhibits toward his daughter, not on whether the child bears his name."

posted by maggie at 1:53 AM | Link | 1 comments