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May 6th, 2012 by Robert Franklin, Esq.
The Canadian Supreme Court has left in place a lower court ruling that a biological father is his child’s legal father even though his original role was that of sperm donor.  Read about it here (National Post, 4/10/12).

An untold number of years ago, a Montreal woman decided she wanted to have a child.  She wasn’t married, so she sought the services of an artificial insemination clinic.  But the cost of the services was more than she could afford so she talked the matter over with her ex-boyfriend.  Although the exact terms of the agreement are contested by the two, he agreed to provide the semen and, for the most part, take no part in the child’s life.  Apparently she agreed to not ask him for child support and, in the event, he provided none.  She paid him $1,400, the two had sex and she conceived.

That would have been the end of the story, but the woman died of cancer when the little girl was three years old.  At that point, the mother’s parents took over the child’s care, but Dad also showed up claiming his parental rights against the child’s maternal grandparents.  The trial and appellate courts agreed with him and the Supreme Court declined to review their decisions.  In short, although he initially agreed to stay out of his child’s life, Canadian law allowed him to re-enter it three years after the fact.

It should come as no surprise that that’s created quite a stir among those concerned with parents’ and children’s rights.  It shouldn’t, but it has.

“This notion that years later the donor can show up and start asserting rights over the child, this is their worst nightmare,” said Michael Lubetsky, the Montreal lawyer who represented the girl’s grandparents at the appeal court. “That’s incredibly disruptive…. It’s an attack on the family structure.”

…“Many single mothers plan financially and emotionally to raise a child on their own. When that expectation changes, it feels like an imposition,” said Fiona Kelly, a University of British Columbia law professor who studies the issue. “There has to be some legal certainty, because these women and the donors and the children are existing essentially in a legal limbo.”

Neither of those arguments holds water.  The notion that a father’s assertion of his parental rights disrupts the family structure is wrong in too many ways to count.  First, having a child out of wedlock also disrupts the family structure, but people do it every day and little is said against the practice.  In this case, the family structure was already disrupted by that initial decision and far more so by the mother’s death.  And what family structure there is among the child and grandparents will likely continue in at least somewhat the same way as before.  The child will be cared for by the father but will continue to see her grandparents.

But more importantly, I’d bet money Lubetsky doesn’t even believe what he says.  Why?  Because he’s a family attorney.  That means he disrupts family structures all the time and gets paid well to do so.  That’s what divorce is.

More important still is the fact that new fathers are brought into the lives of children all the time and no one complains.  New mothers too.  When Mom divorces Dad and remarries, that brings a new dad into the kids’ lives.  Would Lubetsky favor a law preventing that?  After all, divorce and remarriage by the parents are certainly upsetting to the kids.  All of a sudden they not only lose the only father they’ve ever known except (if they’re lucky) on alternating weekends, they gain a stepfather whom they don’t know very well and who competes with them for their mother’s attention.  But neither family law nor family lawyers ever say we shouldn’t allow divorce or divorced spouses to remarry, despite the well-known distress it causes children.

So why is it that when an unmarried father all of a sudden wants to play a role in his daughter’s life does the concept of familial disruption all of a sudden come up?  The question answers itself; it comes up because it’s a father asserting his rights and some people don’t like it when that happens.

And let’s not forget another thing.  Assume Mom had lived.  Assume further that, when the child was three, Mom ran short of money.  Could she all of a sudden point to the father and demand child support?  Of course she could and the courts would waste no time in making him pay.  If he then wanted a relationship with the child, that too would be granted, assuming he was fit to parent.  At any time in the child’s life, Mom could have figuratively said “the deal we made is off and, because of your biological relationship to the child, you have obligations to her.”  So what the father is doing is the flip side of that.  Biology rules his duties; it rules his rights too.  And that’s fair.

Fiona Kelly’s argument is a wolf in sheep’s clothing.  She claims that mothers, fathers and children in the sperm-donor situation require “legal certainty.”  Well, they have it.  What could be clearer or more certain than the concept that fathers have parental rights by virtue of their biological connection to their children?  It’s a pretty simple concept, after all, and one easily understood by most people.  Anonymous sperm donors won’t be able to exercise parental rights because no one except the clinic knows who they are and they don’t know who their children are.  But men like the one in this case can and will.

My guess is that what Kelly is actually arguing for is some diminution of fathers’ rights in cases like the one reported on.  Her idea may be to limit the time in which a father would be able to assert his rights, for example.  Of course she’d never put a similar time limit on a woman’s ability to demand child support at any time.  So again we’d be faced with the law placing greater power over children and childcare in the hands of women than of men.  But of course I’m speculating; Kelly said none of that, but, when someone argues for legal certainty in cases that are already perfectly certain, I smell a rat.

In the end, though, the Canadian courts got it right.  The man is fit to parent and he has parental rights.  For some reason, some people just can’t handle that, but the courts, to their credit, can.

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