Just Wait For The Whining

It seems that in Ontario, a judge has ruled that a child can have more than 2 parents.

[Update]:Here's the full text of the actual ruling.
[/Update]

I'll put money down that the first thing out of the right-wingnut-o-sphere will be a bunch of whining about how this is promoting polygamy and other assorted evils. (Not to mention - Gay Adoption (oh the horror!))

However, let's take a closer look at the facts shall we?

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 two women would be the primary caregivers of the child, but they believed it would be in the child's best interests that B.B. remain involved in the child's life.

Suddenly this all makes a lot more sense. The fact is that the two women have been in a long term, stable lesbian relationship. The father is a friend of the couple and has been directly involved all the way along.

"Perhaps one of the greatest fears faced by lesbian mothers is the death of the birth mother," the appeal court heard. "Without a declaration of parentage or some other order, the surviving partner would be unable to make decisions for their minor child, such as critical decisions about health care."

So, what we have here is clearly not polygamy, but really not much different than the situation that can occur when a couple splits and the children wind up living with one of the parents in another relationship. In such a situation the "step parent" has a great deal of parental involvement with those children, and certainly can have basic parental authority where schools and the like are concerned. To me, this isn't much different than a "new spouse adoption" of their spouse's offspring from prior relationships.

The fact that the biological father has remained an active part of the child's life is admirable, and the reality that the two women appear to be sharing the job of raising the child simply further reinforces the reality that GLBT people are perfectly capable of being good parents.

Just to review some of the legalities involved:

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."

The Attorney General for Ontario did not chose to intervene to support the legislation, the ruling noted.

In other words, the laws being applied to prevent this adoption simply are not written to deal with the situation before the courts.

However, we can look forward to a great deal of hand wringing and paranoid ramblings from the religious right wing in the coming days over this - especially as they try to mutate things into a completely bogus family values argument.

[Update]
As expected, the usual talking points are being raised: Polygamy, "Courts making Laws" and of course "what about the children"/"Family Values" in various forums.

Talking Point #1: Polygamy

This is clearly not a case involving polygamy. Nor does it open the door to it in any sense I can think of. If anything, this opens the door for couples where remarriage is in the game, and the "new spouse" is seen by both parents as a positive part of the relationship. This is NOT polygamy, any more than two divorced people remaining in close contact after divorce is - even if one of them remarries.

Talking Point #2: Activist Judges (or "The Courts are Making Law")

Again, this is a complete crock. The ruling itself talks about Parens Patriae, which is basically the right of the state (and courts are part of the state) to intervene where laws are incomplete or otherwise fail to deal with a situation - in particular where people who are not "legally competent" are involved (children for example).

The court is not "making law" here, it is exercising a classical judicial right to ensure that the best interests of a citizen are looked after. In fact, the use of such wording within the decision itself makes it quite clear that future decisions citing this case cannot readily broaden the decision itself.

Talking Point #3: "what about the children"/"Family Values"

From the ruling itself:

[2] In 2003, A.A. applied to Aston J. for a declaration that, like B.B. and C.C., she was D.D.’s parent, specifically his mother. Had he thought he had jurisdiction, Aston J. would have made that declaration. He found at para. 8 that:

The child is a bright, healthy, happy individual who is obviously thriving in a loving family that meets his every need. The applicant has been a daily and consistent presence in his life. She is fully committed to a parental role. She has the support of the two biological parents who themselves recognize her equal status with them.

Clearly, the child is the important point here, and the child is doing well. There is no indicator of harm involved.

14] A.A., B.B. and C.C. seek to have A.A.’s motherhood recognized to give her all the rights and obligations of a custodial parent. Legal recognition of her relationship with her son would also determine other kindred relationships. In their very helpful factums, the M.D.R. Intervenors and the Children’s Lawyer summarize the importance of a declaration of parentage from the point of view of the parent and the child:

· the declaration of parentage is a lifelong immutable declaration of status;

· it allows the parent to fully participate in the child’s life;

· the declared parent has to consent to any future adoption;

· the declaration determines lineage;

· the declaration ensures that the child will inherit on intestacy;

· the declared parent may obtain an OHIP card, a social insurance number, airline tickets and passports for the child;

· the child of a Canadian citizen is a Canadian citizen, even if born outside of Canada (Citizenship Act, R.S.C. 1985, c. C-29, s. 3(1)(b));[2]

· the declared parent may register the child in school; and,

· the declared parent may assert her rights under various laws such as the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A., s. 20(1)5.

[15] Perhaps one of the greatest fears faced by lesbian mothers is the death of the birth mother. Without a declaration of parentage or some other order, the surviving partner would be unable to make decisions for their minor child, such as critical decisions about health care: see M.D.R. at para. 220. As the M.D.R. Intervenors say: “A declaration of parentage provides practical and symbolic recognition of the parent-child relationship.” An excerpt from the M.D.R. record dramatically demonstrates the importance of the declaration from the child’s point of view. I resort to this part of the M.D.R. record because D.D. is too young to provide this kind of information. The twelve-year old child of one of the applicants said this in her affidavit:

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.

…

It would help if the government and the law recognized that I have two moms. It would help more people to understand. It would make my life easier. I want my family to be accepted and included, just like everybody else’s family.

[16] In M.D.R. at paras. 227 and 228, Rivard J. referred to some of the submissions discussed in the Victorian Law Reform Commission’s position paper entitled Assisted Reproductive Technology & Adoption: Position Paper Two: Parentage at pp. 15 and 17:

These submissions reported that the non-birth mother often encounters obstacles and ignorance, and at times hostility, in her dealings with government agencies and service providers where legal status is a relevant factor. Because the non-birth mother cannot be named as a parent on the child's birth certificate, she is 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.

Perhaps this pair of paragraphs from the ruling underscores the spirit of the child's interests best. By making the declaration involved, the court is ensuring that a key caregiver in the child's life will remain so, even in the event of a tragedy. This is clearly the desire of the child as well as the adults involved.
[/Update]