FAQ on Ontario’s Bill 28, the “All Families Are Equal Act”

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10 Nov 2016 FAQ on Ontario’s Bill 28, the “All Families Are Equal Act”

If you have not read ARPA’s main article on Bill 28, we encourage you to read it first. There you will also find links to EasyMail letters on this topic. If you have already emailed your MPP, you can use this FAQ to assist you as you follow up with an additional email or phone call.

How will Bill 28 affect me and my family?

Bill 28 does not simply create or add new kinds of families. It redefines all families, present and future. By removing references to “mother”, “father”, “natural parents”, and “blood” relations from Ontario law, and by creating alternative, contractual “families” between multiple unmarried and unrelated adults and children conceived further to their “parentage agreements”, Bill 28 knocks family law even further off its foundations.

The bill gives the illusion of greater freedom. It gives people more “options” to choose from as they determine what a family is for them. But if the state can redefine the family and offer more “options” or “rights” by knocking family law off its foundations of marriage and blood relations, it can also take rights away. What will become of parental rights if a “family” is whatever the state says it is and a “parent” is whoever the state says is a parent? It’s hard to know, but it’s deeply disconcerting.

Do we care about our children and grandchildren’s understanding of who they are, what a family is, and why it’s important? Make no mistake, education policy and curriculum (among other government policies and programs) will fall in line with Bill 28’s radical changes to Ontario law. This is about more than immediate practical consequences to my parental rights or yours – it is about embedding a false understanding of who we are as human beings into the law.

According to a leading family law textbook, family law has traditionally been concerned with “the relationships between husband and wife and parent and child.” And, “The main subjects of family law have, therefore, traditionally been marriage, separation and divorce, property rights of spouses during the marriage and on marriage breakdown, support obligations of spouses to one another, the care and custody of children, support obligations of parents to their children, the intervention of the state in the parent-child relationship through child protection legislation, and the establishment of a parent-child relationship through adoption.” (Hovius on Family Law, 7th edition)

Bill 28 will impact many and likely all of these areas in the long term. It makes marriage, which our law and culture have been devaluing for decades, even less important in family law. Far less. Marriage-plus-children will no longer be the basic model (which the law of common law relationships and adoption reflect). Having children the way almost everyone in the world does will be considered in Ontario law to just be one way (and no more legitimate or desirable) among others to form a “family”. The “natural family” and “natural parents” are not to be favoured, promoted, or given primacy in law. Bill 28 rejects the very idea of a natural family.

Bill 28 declares all “families” – whatever voluntary arrangements the state deems worthy of the term – “equal”. So it renders marriage, common law relationships, and blood relations – the foundations for family law – unimportant in law. Of course people can still form families by getting married and having children under Bill 28. But the philosophy of Bill 28 is that you are not family because you are married or related by blood. (Hence the removal of references to relations “by blood” and to “natural parents”.) Rather, you are family if the law says you are. And if the law says you are family, your family is “equal” to all other families. If the state one day says you are not a family or you aren’t parents – even to your own biological children – what will you say?

Are “natural families” or “natural parents” really so important? What about adoptive parents?

Emphasizing the importance of biology and blood relations between children and parents sometimes raises questions about adoptive parenting. Properly understood, however, adoption does not undermine the “conjugal conception of parenthood” or the natural family, but affirms the good of both.

In an adoptive family, too, it is marital love that is the starting point for the family, Dr. Tollefsen explains. The mutual commitment of spouses to each other and the child is what initiates the familial relationship, whether the child is the biological fruit of marital love or grafted into that relationship of mutual love and commitment through adoption.

Adoption should not be understood as a way to remedy the “problem” of infertility. Rather, adoption is for the good of the child. Adoption integrates children into a family who would otherwise not have a family. Affirming the good of adoption does not require redefining the family. It does not require throwing aside conjugal union as the foundation of the family. Adoption ideally provides the child both a mother and a father (other considerations being equal). Placing the child with relatives is also desirable where possible – again, because blood relationships do matter.

We recognize adoption to be a good alternative for a child where the child’s natural parents are deceased or unable or unwilling to care for the child, but the law prioritizes and protects the child’s relationship with his or her natural parents and should continue to do so.

Even when children are adopted, we generally recognize the good of the child learning in time who his or her natural parents are, for health and identity reasons. Bill 28 does not provide for this.

Bill 28 designs a legal system that legitimizes and encourages deliberately bringing children into the world who are separated at birth from their mother and father and whose legal parents may have no relationship beyond the merely contractual. Adoption, conversely, is intended to provide a child with a family in place of the child’s natural parents where the latter are deceased, unable, or unwilling to care for the child, without denying the reality that the child does in fact have biological and adoptive parents (categories that Bill 28 erases).

Bill 28 may even make it more difficult for some couples to adopt children. If a couple holds the view that children do best when raised by a married mother and father (a view supported by the evidence), or even that children are better off with a married couple as parents than a group of four co-signors of a contract, their views would be plainly contrary to the “All Families Are Equal Act”. Consequently, it may be considered contrary to public policy to place adoptive children with people who hold such beliefs. See for example this story out of the United Kingdom.

Isn’t the main purpose of the bill to simplify the process for both partners in a same-sex couple to be recognized as parents?

Currently, if a same-sex couple wishes to have a child that is legally recognized as the child of both of them, they can either adopt a child together or one of the two can be the biological parent of a child with a third party. In the latter case, the non-biological parent of a same-sex couple has to apply to a court to be recognized as a legal parent, effectively legally adopting the child. Also, when a birth is registered in Ontario, the law requires parents to list a mother and a father. This means that same-sex couples cannot both be listed on the birth certificate.

With opposite-sex couples, conversely, the child’s mother’s husband or common law partner is presumed to be the child’s father, unless evidence is presented to the contrary. Both mother and father can be listed on the child’s birth certificate.

The differences are derided by some as discriminatory and unjust. In our view, however, the differences arise not from any irrational animus towards or mistreatment of LGBT persons, but from the real differences between opposite and same-sex couples and the reality that every child has a biological mother and father. One or both of the partners in a same-sex relationship must inevitably be an adoptive parent.

If the goal were simply to save same-sex couples the cost and inconvenience involved in having both partners recognized as legal parents, Ontario could simplify adoption procedures and provide additional support for parents going through that process.

But Bill 28 goes way beyond making things easier for same-sex couples. In fact, as explained elsewhere, it makes couples (opposite-sex or same-sex) far less important in family law overall, opening up alternative contract-based “families” between multiple parties who are not in a committed relationship or related by blood.

Bill 28 facilitates having children through surrogacy. What’s the problem with that?

Surrogacy is a difficult and complex issue, legally and ethically. If the Ontario government is interested in reforming the law of surrogacy, it should at least study the matter in depth and allow time for public input first. Here are some of the problems with surrogacy.

Essentially, surrogacy commodifies women and children. It makes a woman’s reproductive organs objects than can be used and rented. It risks causing disruption in the lives of children born through surrogacy. It can even leave children vulnerable to trafficking. According to international law, surrogacy violates human dignity and children’s best interests, as Adina Portaru (PhD in international law) explains:

Surrogacy contravenes European and international law. The sheer number of laws it violates is staggering: the Charter of Fundamental Rights of the European Union (2000), the Convention on the Rights of the Child (1989) and its Protocol on the Sale of Children (2000), the Conventions on the Elimination of all Forms of Discrimination Against Women (1979), on the Adoption of Children (1967 and 1993), on Human Trafficking (2005), and on Human Rights and Biomedicine (1997). All of these documents place human dignity (as opposed to the commoditization and objectification of the human body) at their heart and outline the superior interest of children to know their origin and identity.

Surrogacy under Bill 28 will likely cause substantial confusion and conflict.

Many persons might claim parental rights with respect to a child born out of a surrogacy agreement under Bill 28: the surrogate mother, the genetic mother (egg donor), the husband or common law partner of the surrogate mother (presumptions of paternity), the genetic father (sperm donor), and the four “intended parents” signatory to the surrogacy agreement.

Bill 28 encourages surrogacy and facilitates the establishment of families through “surrogacy agreements” with up to five parties – four “intended parents” plus the surrogate. This new form of family, which has no couple in a committed relationship at its core, depends on women agreeing to be “breeders”.

Other countries such as France, Finland, Iceland, and Germany, completely prohibit surrogacy, recognizing that even altruistic surrogacy can be exploitative and lead to serious conflict. Quebec law does not recognize surrogacy arrangements and does not enforce surrogacy contracts. France does not allow people who arrange to have a child through a surrogate to be recognized as the child’s parents at birth or to adopt the child.

Ontario would do well to at least have a legislative committee study why some jurisdictions have prohibited surrogacy while others have permitted and regulated it.

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