Quebec sperm donor's name to be stripped from birth certificate following appeals court ruling

The name of a sperm donor will be removed from his child's birth certificate following a recent Quebec Court of Appeal decision, which has reignited calls for the province to legally recognize families with more than two parents.

In the case of Family X, the sperm donor to a lesbian couple sought to have his name included on the birth certificate after the couple split and the non-biological parent transitioned from female to male.

In May 2018, a lower court agreed to his request and ordered the name of the non-biological parent removed from the document and replaced with the sperm donor's.

But in handing down that ruling, Quebec Superior Court Judge Gary Morrison said the Quebec government should review its laws to recognize families with more than two parents.

In overturning Morrison's decision earlier this month, though, the appeals court said this case may not have been the right opportunity to create a precedent.

"Family X is biparental: since the child's birth, it had two [parents]," wrote judges Jocelyn Rancourt, Stephen Hamilton and Supreme Court nominee Nicholas Kasirer.

Their ruling, published Aug. 16, points out there was a written agreement between the couple and the sperm donor, who alleges the child may have been conceived through sexual relations.

In the agreement, struck after the child was conceived, the donor consented to play an active part in the child's life but not be registered as a parent on the birth certificate. Instead, the judge wrote, the agreement stated he would be a "legal guardian," something the judge points out is a different role than that of the two mothers. 

Appeals Court Judge Nicholas Kasirer wrote in the decision that though the man has undertaken significant parenting responsibilities, it does not change the original agreement of having the now-split couple's names on the certificate.

Biological father felt threatened by 2nd father figure

The appeals court decision also says the sperm donor's motivation for seeking to have his name included on the birth certificate may have gone beyond mere recognition.

"It appears the [non-birth parent's transition] was one of the decisive reasons" why the biological father pursued the case in court, the decision states.

• Quebec families with more than 2 parents fight for recognition

The appeals court cited a document submitted by the donor in which he objects to the desire of the transitioning non-biological parent to be called "papa" by the child.

 "It hurts me…. My role was to be the father," the sperm donor added during testimony at the initial trial. The appeals court singled out that comment in its decision. 

The non-biological parent's transition should in no way change his legal status as a parent, the appeals court said.

An advocacy group for LGBT families welcomed the decision to overturn the lower court ruling and exclude the sperm donor's name from the birth certificate.

Mona Greenbaum, director of the Quebec LGBT Family Coalition, said there was an element of transphobia in the lower court ruling because it prioritized the blood link when there was no legal reason to do so. 

"I'm relieved, but at the same time I'm a little bit disappointed that [they] didn't go any further than that," Greenbaum said, adding that she was hoping the appeals court judges would have also called on legislators to allow for more than two legal parents.

Time for Quebec to catch up, law prof says

Robert Leckey, dean of the law faculty at McGill University, agreed that it's time for the government to recognize more alternative parenting situations. 

"There's been strong resistance in Quebec even as other provinces have moved that way. I think some people are concerned that there'll be more disputes," Leckey said Wednesday on CBC Montreal's Daybreak.

• Scientists say it's time to make '3-parent baby' technology legal in Canada

"But at the end of the day, social practice has moved there. There are kids who do have three parent figures, and I think ultimately we'll need to find a way to recognize them."

Other provinces have changed their policies to recognize multi-parent realities.

In 2007, an Ontario court set a precedent by permitting three or more parents to be listed on a birth certificate. British Columbia passed a law allowing the practice in 2013.

Last summer, a judge in Newfoundland and Labrador declared all three adults in a polyamorous relationship legal parents.

But Leckey said the facts about the case of Family X did not lend themselves to a similar kind of precedent-setting ruling. 

"The dispute was over who was going to be parent number two," said Leckey, who has written extensively about family law.

"So I can see why the Court of Appeal may have felt this wasn't the occasion to really push things toward three parents, when it wasn't in fact what the people were looking for."

In response to a request for comment, Quebec's Justice Ministry wouldn't say whether it intends to legally recognize more than two parents. But it added that family law reform is in the works.