Equal Parents, Equal Children

Abstract

Lesbian couples and single women are choosing to become parents, typically via some form of assisted conception, at ever increasing rates. These two groups make up approximately thirty per cent of all clients of fertility clinics in Canada, and many more conceive at home using the sperm of known donors. Yet, when lesbian mothers and single mothers by choice (SMCs) are challenged in the courts- usually by a known donor asserting legal parentage and the rights associated with it- judges, who often have little statutory guidance, routinely undermine the stability and integrity of these women-led families in ways heterosexual couples are protected against. In this article, I argue that equality for lesbian and SMC families is best achieved via legislative reform that prioritizes intention over biology in the assisted reproduction context, akin to the recently introduced legal parentage provisions in British Columbia’s Family Law Act. The introduction of legislation of this type reduces judicial discretion and provides women-led families with the same level of pre-conception certainty heterosexual families have enjoyed for decades. In addition, I argue that in circumstances where legislative presumptions are not available, or where they fail to resolve the conflict, the best interests of the child test should be interpreted in a manner that is consistent with children’s section 15 Charter equality rights. This will ensure that all children enjoy the same level of family stability and security, independent of the composition of their family or their method of conception.