What makes a legal parent?

Victor Kosakovsky’s newest film, Gunda, opens with a sow giving birth to a litter of piglets. Neither she nor the newborn pigs have any doubt about her parentage of them: they scramble and scrabble to latch onto her teats within seconds of being born. As the piglets get older, long after they have become physically independent of their mother, we see the depth of the emotional connection between them each time they seek one another out, touching snouts and breathing in each other’s breath.

Dramatic but relatively rare tales of babies switched at birth aside, human mothers, like Gunda, generally know who our children are. They spend nine months in our bodies, so we know them even before they arrive and, of course, we are present for their birth.

Such is not the case for fathers. We know nothing about the father of Gunda’s piglets: he made his contribution and disappeared from their lives. There are some human fathers who fit that mould, but most are much more involved with their children. But, short of a DNA test, men can never be 100% certain that they are the biological father of their children.

Legislating parentage

This reality is reflected in the way most parentage legislation has been written until relatively recently; legislation that, in the past, has assumed a child can have a maximum of two legal parents, one woman and one man.

The mother who has given birth to the child has been automatically considered a parent. If she is married or living in a common-law relationship with a man, he has been automatically considered the other parent.

No more: as family structures, gender identities, intimate partner relationships and ways of conceiving/carrying and giving birth to a child have changed, so has our understanding of what it means to be a parent and who can be one, with all the rights and responsibilities that go along with that designation.

Broadening definitions

Until 2017, when the All Families Are Equal Act came into effect, birth registrations could carry the name of the birth mother only, or her name and the name of one other person, who had to be male. Most often, this would be her spouse or partner.

Now, thanks to this legislation, part one of the Children’s Law Reform Act sets out who can be the legal parent of a child:

1. The birth parent, unless that person is a surrogate who has relinquished parentage or who has been declared by a court not to be a parent
2. The person whose sperm resulted in the child’s conception through sexual intercourse. The law makes a number of assumptions about this: if the person was the birth parent’s spouse or conjugal partner, or was married to or living conjugally with the birth parent within 300 days before the child’s birth, and so on. Sperm donors are not considered to be a parent, as long as they and the birth parent have signed a written agreement to this effect
3. The spouse or common-law partner of the birth parent, if the child is conceived through assisted reproduction
4. Up to four people who agree, by entering into a parentage agreement before the child is conceived, that they will all be parents of the child
5. Five or more people, by declaration of the court, where they have entered into a surrogacy agreement

Anyone who is a legal parent of a child can be identified as a mother, father or parent.

Simple equality

Upon first reading, this may sound confusing, but it’s really not. As the two examples below illustrate, the changes to the law do nothing more than create equality for people in different kinds of relationships who wish to parent a child together:

1. Two people in a conjugal same-sex relationship have a child through assisted reproduction. Both of them can appear on the child’s birth registration, unlike in the past, when the non-biological parent had to adopt the child to be a legal parent. They can also include the sperm donor as a parent, if they write an agreement to that effect before the child is conceived.
2. Three or four people in a polyamorous relationship all wish to be legal parents of a child. If the child is conceived through sexual intercourse between two of those people, the four of them must enter into a parentage agreement before the child is conceived. In the past, no more than two people could be the legal parents of a child.

What do the courts say?

While the Children’s Law Reform Act applies only to families in Ontario, court decisions are establishing a broader understanding of who can be a parent in other provinces and territories.

A recent British Columbia case about three people in a polyamorous relationship who all wanted to be the legal parents of a child born as the result of sexual intercourse between two of them explores the issue in detail.

In its decision, the court notes that:

“parentage is immutable; the relationship between a parent and their child cannot be broken. . . A parentage declaration is a symbolic recognition of a parent-child relationship.”

“It is not disputed that [the child] is being raised by three loving, caring and extremely capable individuals. Unlike many family law matters which come before the court, this is not an instance of family members taking adverse positions.”

While the origin of the phrase “It takes a village to raise a child” is not clear, its meaning is: the more loving people who can be closely involved in a child’s life, the better for the child. At the end of the day, surely it is this that should matter most, not the number of people or the nature of their relationships with one another.