Thursday, March 31, 2011
Fiona Kelly (University of British Columbia Faculty of Law) has posted "Transforming Law's Family: The Legal Recognition of Planned Lesbian Families" on SSRN. Here is the abstract:
Lesbian families with children are greater in number and more visible today than ever before. In fact, social scientists have suggested that we may be in the midst of a lesbian "baby boom". Canada's Census figures support this assertion. Between 2001 and 2006 there was a forty-seven per cent increase in households made up of two lesbian mothers and their children. This dissertation addresses the legal issues raised by lesbian motherhood, focusing primarily on legal parentage. It considers the terms upon which parental recognition has been achieved thus far, and evaluates the efficacy of a reform agenda focused exclusively on gaining access to the existing legal framework. To explore the legal and social dynamics of planned lesbian families, interviews were conducted with forty-nine lesbian mothers living in British Columbia and Alberta who conceived using assisted reproduction. Mothers were asked about the structure of their families, how they defined terms such as "parent" and "family", the extent to which they had engaged with law, and their recommendations for law reform. The interviews revealed that lesbian mothers define family and parenthood broadly, emphasizing intention and caregiving over a purely biological model of kinship. All of the mothers defined a "parent" as someone who intends to parent and, once a child is born, performs that intention through caregiving. Parental status was thus not limited to those who shared a biological relationship with a child, or even to two individuals. The research suggests that lesbian mothers have little interest in being subsumed into the existing legal framework which tends to prioritize dyadic and biological parenting. In fact, only a tiny portion of the mothers felt that identical treatment would adequately respond to their needs. The vast majority supported law reform that would extend to them the benefits of the current system, while simultaneously expanding the existing framework to include a wider variety of parental and family configurations within it. The reform model chosen to achieve this aim combined parental presumptions in favour of the lesbian couple or a single lesbian mother, with opt-in mechanisms that allowed the family to extend beyond the two parent unit.