Ontario's Court of Appeal on Thursday granted a lesbian mom's request for a declaration of parentage, without stripping the biological father of his parental rights. The two moms made this unusual petition in lieu of seeking a second-parent adoption, because that would have required Dad -- their friend, sperm donor, and a regular part of the five-year-old's life -- to surrender his parental rights. I originally wrote about this case back in 2003, when a lower court denied the petition on jurisdictional grounds. Frankly, I had thought nothing would come of this action. Howard Bashman's How Appealing blog (which I check compulsively) links to a variety of press items on the case.
I'm not sure what to think about this decision. To be sure, I think the outcome is a good one: the child (like many other children) really has three parents, and it is in his best interest that the law recognize this. Nevertheless, in a case like this I am much more sensitive to the argument that this is not a decision for the courts than I am with regard to same-sex unions and parents. While opponents claim that there are many unknown factors that should be studied and weighed by legislators, same-sex couples are, in every way that should concern the law, just like opposite sex parents. (Note the qualifier: I do not intend to take a position on whether queers are "just like" straights in other senses.) By contrast, multi-parent families do, simply by dint of numbers, arguably raise important and unfamiliar practical issues more properly within the purview of legislators.
That argument might be persuasive if this were a constitutional case. But the Court of Appeal here dismissed constitutional claims because they hadn't been raised below, and instead decided the case on the basis of parens patriae, a special kind of inherent jurisdiction in family case. Both court opinions in the case focused on jurisdiction, and the two courts basically disagreed on what kind of "legsilative gap" allowed decisions based on parens patriae. The appellate court held that, since the relevant statute was written a generation ago and its drafters had not even considered cases like this one, jurisdiction was appropriate. Under a doctrine like this, where courts are already given the right to go beyond statutory law in dealing with unforeseen cases, the court's chartering these unfamiliar waters seems wholly appropriate. After all, if the court had refused to consider the merits, and the family been forced to go to the legislature, they would remain in a vulnerable position in the meantime. This, I think, is precisely the point of a doctrine like parens patriae. Note that no such doctine would apply to a case concerning a right to polygamy.
Curiously, while both courts incorporated policy considerations into this analysis, the appellate court did not discuss at all any special considerations raised by the three-parent situation, but instead relied upon the case law on lesbian mothers. I am very curious to see what comes of this case in terms of public and political reaction, and whether there is any further litigation. At first glance, the latter seems unlikely inasmuch as the only parties to the case are the three parents. But it would seem that now the legislature is on notice of this "legislative gap," and could act on it one way or another.