Wednesday's refusal by the Supreme Court of Canada to hear an appeal by an adoptive mother fighting for the same maternity leave benefits as birth mothers may be a setback, but it's not the end of the world, says the mother, Patti Tomasson.

"We started dealing with it through the legal system eight years ago and we didn't get anywhere, but that doesn't mean we can't begin the conversation again. The only way we can deal with it now is to try to get the government to change the law," says Tomasson, the B.C. lawyer who brought the case to the country's highest court.

Under the federal Employment Insurance Act, birth parents and adoptive parents are both eligible for 35 weeks of parental leave, but only birth mothers can take an additional 15 weeks of maternity leave.

Tomasson applied for maternity leaves after she adopted each of her two daughters, Sarah, who's now eight, and Hannah, now four.

In August 2007, the Federal Court of Appeal ruled Tomasson didn't qualify for maternity benefits because she didn't undergo the "physiological and psychological experience" of pregnancy and childbirth.

But Heather Rowe says adoptive parents need the extra time to bond. Fourteen years ago, the speech language pathologist from St. Catharines, Ont., adopted a baby girl, Katrina.

"The emotional time is as important as the physical," she says. "In fact, mothers who haven't given birth maybe need more time to envelop the child. As soon as you find out you've been approved you fall in love, but because you don't have the physical presence of the baby inside you, you don't start the physical bonding until you are actually holding the baby."

New breed of adoptive parents emerging

Rowe and her husband, university professor Nick Baxter-Moore, are part of a new breed of adoptive parents. Adoptions in the past were a source of shame to birth mothers and children were often unaware until adulthood that they were adopted. However, Katrina's adoption was an open one. Beams Rowe, "It's wonderful, because Katrina gets to see her birth mother and her half sister and brother."

At the same time, Rowe remembers the initial days of the adoption were wrenching. "With open adoptions in Ontario you take the child home for 30 days and then find out if you're allowed to keep it. That's very difficult. You've fallen completely in love with this child, but you're preparing to have him or her taken away."

Often, adoptive parents face issues that birth parents don't. If they are bringing a child from another country, for example, there may be health concerns. An older child or one who has been in foster care may face adjustment challenges. As well, until late last year, Canadian parents adopting from abroad were forced to struggle with immigration hurdles. (In December 2007, Canada passed Bill C-14, which allows children adopted from abroad to obtain Canadian citizenship without first having to become permanent residents.)

Disclosure of information about birth parents and adopted children is another issue, and one that each province deals with separately. Right now, Ontario is in the process of amending its adoption act but struggling with the issue of disclosure of information and whether one party in the adoption process can veto that.

"It comes down to whose rights supersede – the child's rights to their birth information or the parents' rights to privacy," says Karen Madeiros, executive director of the Adoptive Families Association of B.C.

These days, when prospective parents want to adopt they can do so privately, through an agency or through a provincial ministry if the child is in the care of a government agency. In 2005, Ontario enacted legislation making it easier to adopt children cared for by the state.

Canada lags U.S. on adoption statistics

Still, Madeiros says, Canada is greatly behind the United States when it comes to adoption. In fact, while Canada keeps track of the number of children adopted from outside the country, (international adoptions have been dropping since 2003 and stand at less than 2,000 yearly now) there are no figures on domestic adoptions.

In 2003, the United States released statistics from the 2000 census, which measured for the first time the number of adopted children - 2.1 million. "The U.S. has huge national interest in adoption from all of their elected officials in terms of policies and dollars. We have nothing. It's embarrassing. Look at the Adoption Council of Canada. They barely exist and limp along with no funding," Madeiros says.

The greatest challenge now, she says, is addressing the long list of foster kids who are eligible for adoption, but of whom the public seems largely unaware. "We need a national agenda. We need somebody to care about the 8,000 kids in this country who are waiting for adoptive families."

Society's attitudes also need to change, Tomasson says. "People's perception is that adoption is second best. As an adoptive mother I know there are no differences between raising adoptive children or birth children. They are your children."

It doesn't help, she says, when the media perpetuate the idea that adopted children are not "real" children. When former prime minister Jean Chrétien's son had a brush with the law, the media were quick to point out he was his adopted son. "It's like they were saying it wasn't his real son," Tomasson says.

The same goes for the children of celebrity couples such as Tom Cruise and Nicole Kidman, or Brad Pitt and Angelina Jolie. "The media never use the names of those kids," Madeiros says. "They always put adopted first. It's so offensive to the child."

Rowe remembers a father telling her he didn't think she could love her newly adopted daughter the same way he loved his son, who was not adopted. "I think we love our kids more because we've gone through more to get them."

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