Court Cases & Orders

Can a Genetically Tied Parent Be Deemed a ‘Non-Legal Parent’?

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Can a Genetically Tied Parent Be Deemed a ‘Non-Legal Parent’?

In a recent case held at the Quebec Court of Appeal it was confirmed that there is a distinction between who may exercise parental authority legally and who is considered a legal parent. The court determined that through this lens, it was possible to have three or more persons listed as legal parents on the child’s birth certificate.

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The facts of the case regarded a lesbian couple that wished to have a child through a sperm donor. The three individuals entered into a written agreement outlining that the couple would be deemed parents of the child and the biological father to be declared a legal guardian. After the couple divorced, the biological father wished to be deemed a parental status, however a Quebec trial judge indicated that it as not possible to have triple filiation on the certificate.

At the Quebec Superior Court the judge ruled under article 538 of the Civil Code of Quebec that the non-biological parent’s name was to be removed from the birth certificate and replaced with the biological father’s. However the Court of Appeal later overturned the decision in favour of the non-biological mother citing Droit de la famille and the written agreement as supplementary evidence.

The crux of the issue rests in the distinction between legally recognised parental status by way of filiation or kinship. Filiation in essence is the legally binding relationship between the child and their mother and father (in this case the donor and the mother). Yet, filiation is a merely a legal determination of the relationship and does not attest to the practical duties that an individual may hold. It is this line of demarcation between biological relations and daily parental responsibilities that distinguishes the two and the question before the court rests in if the law shall be extend to legally recognise kinship as equal to that of filiation.

This situation of multiple parents on a birth certificate has been evident in recent history with a B.C. court amending the relevant legislation to allow for more than two persons, in addition to a Newfoundland court recognizing a same-sex couple and the other genetically tied parent to be recognized on the birth certificate.

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