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Court has created the mother of all parent traps Three parents, one big controversy Adopting a new definition Court has created the mother of all parent traps You thought I was kidding. On Sept. 6, 2003, when this newspaper endorsed homosexual marriage, I wrote a column ending "Beware: Those who call for nonsense will find that it comes." And now a court says a child can have three parents ... and counting. The decision strikes me as revolutionary. For starters, it makes polygamy all but inevitable. For if marriage, as two people of opposite sex, can be dissolved by any court and reconstituted as two people of any sex, and if parenthood, as up to two people, can be dissolved and reconstituted as three (or more), how long before a judge says all a child's parents can be married to each other, especially if they all live together? Perhaps we want polygamy and perhaps we don't. But (pardon me while I blow centuries-old dust off the page) I think we should involve the representatives of the people in the discussion, not just judges. I mean, isn't abolishing self-government also a bit revolutionary? As for nonsense, what does it even mean when a court says you can now have three parents? Did no child have three parents until Tuesday? Or have people always had groups of dads and we never noticed? At bottom what is law? Does it create facts, or merely recognize them? As I wrote in the Centre for Cultural Renewal's Winter 2006 Centrepoints, the natural law tradition "regards fundamental law as like mathematics: that murder or theft should be forbidden is something we discover not something we decide or invent, just as 2+2 equaled 4 before man learned to count (and even if he never did). ... The alternative positive law tradition says man invents law for his convenience, and only against this standard can it be measured and found wanting." Curiously, in most respects we are nearly all natural-law theorists today. We think everyone has inherent human rights (though we disagree about details) and a legal code is defective, or even illegitimate, to the extent that it fails to recognize and protect them. Yet when it comes to family law, we take a totally different view. I expect if courts redefined a table as a child we would send it to kindergarten. My view of positive law is well expressed by the possibly apocryphal anecdote about Abraham Lincoln asking if a cow's tail were a leg how many legs it would have, and dismissing the answer "Five" by saying a politician calling a cow's tail a leg doesn't make it one. Clearly we could not do math, build houses or sell eggs if 2+2 could be turned into 5 and perhaps later 28.7 or 4/3pr3 depending on our mood. And I very much doubt a social structure will hold up any better than a building if we presume we can make anything into anything else by reciting the appropriate spell. But I also can't believe people always had extra parents and no one knew. As for the claim that "reality is changing" in ways the law must reflect, the presence of loving adults besides their parents in many children's lives certainly isn't news. Indeed, I expect it used to be more common. But under the old definition these other adults were aunts and uncles, biological or honorary. (Even under old-style polygamy you had only one mom.) The title of "parent" belonged exclusively to the two people who dependably jumped out of a shared bed if they heard barfing sounds at 2 a.m. So unless the definition has changed, or was always wrong, it still does. Our changing habits cannot give Heather three mommies. Nor can a judge. The old natural law was not obtuse or naive about families. Its adoption and child protection laws allowed the status of "parent" to be transferred from a biological progenitor or step-parent to another caregiver for a variety of reasons. But that status couldn't be expanded. It had to be relinquished, or forfeited, by one person to go to another. Someone might have fewer than two parents but never more. And no cow ever had five legs. The problem is not that this ruling gave a child a second "mother." For better or worse gay marriage did that. The intolerable novelty here is that the court did so without delisting the original father. Allowing parents to multiply raises enormous practical problems of child support, access and so on. But behind them lurks a question of principle: Is it really true that you can have more than two parents at one time? If so, everyone who ever lived, loved and raised a family misunderstood the word "parent" from the dawn of time until light shone down from the bench on Tuesday. Which is what Canadian law now says. So beware: Nonsense is not just coming. It's here. John Robson's column appears weekly. Three parents, one big controversy TORONTO - Critics call it unnecessary judicial activism, another attack on traditional values by a court that took it upon itself to redefine the family. Same-sex parents say it is simply a recognition of reality. But for an Ontario woman known only as A.A., this week's decision bestowing on her the status of mother means more than legal acknowledgment of her practical role in a five-year-old boy's life. ''It's a very profound thing for her,'' said Peter Jervis, the lawyer who helped the woman, her lesbian partner and their son's sperm-donor father in their common quest to win recognition as Canada's first official three-parent family. ''She's been a mom since this little boy was born. She's read him stories, changed his diapers ... put Band-Aids on his fingers and done all the things mothers do equally with his biological mother -- and she's now his legal mom.'' The London, Ont., couple, together since 1990, decided to bring the little boy into the world with the help of a male friend. The birth mother and the sperm-donor father are recognized on the child's birth certificate. The two women are the full-time guardians, but the father is very involved, visiting his son twice a week. Ruth Ross, executive director of a group that had intervenor status in the case, said the Christian Legal Fellowship has not ruled out appealing the decision, if it determines at a further legal challenge is viable. Ms. Ross wondered where courts will draw the line when it comes to granting parental status to those who do not share DNA with a child. ''Can one or two step-parents now apply for legal status as a parent and ultimately lead to four or even six parents being recognized by the courts as having say over the child's upbringing?'' she said, calling the scenario ''parenting by committee.'' Kaj Hasselriis, executive director of the same-sex rights group EGALE, said the ruling enshrines rights and responsibilities for all types of modern-day families, not just those headed by gay and lesbian parents. ''Multiple-parent families are not at all new in Canada and they're not
that unusual,'' he said. ''This just demonstrates that the courts are
catching up with reality in Canada.'' Adopting a new definition As our social understanding of what is a family evolves, we need to keep a closer grip on two things: our facts and our principles. Important questions about both have come up twice this week. On Tuesday, an Ontario appeals court ruled that the five-year-old biological son of a lesbian and her male friend could have his mother's female partner added to his birth certificate as a third parent. Previously, the partner could have adopted the boy, but only at the cost of removing his father from the records. All three adults are part of his life and will now be legally recognized. Children adopted by anybody are issued new birth certificates that insert the adoptive parents' names where their birth parents' names used to be; the original one goes on file, where it can be disclosed if the adoptee comes looking later. This legal fiction might have been understandable when having been adopted indicated something shameful about one's birth, but it's no longer defensible. Legal documents should record truth. In the case of the boy with three parents, his birth certificate should record his biological parents' names, with his adoptive mother noted separately. That information might even be on the same document, but the social construction of parenthood must not be confused with literal fact. By all accounts the boy has three adults who agree on each other's involvement in his life. The law must also account for what happens when a trio of parents falls apart, or if the father in this case marries someone else. Could the existing mothers share responsibilities and rights with a third? What does this mean for polygamous arrangements? If three people can be parents together, can't they be spouses? Some social conservatives want a royal commission to explore the definition of family in 21st-century Canada, and the court decision focused more attention on the public call for one that they made on Monday. This is partly about the politics surrounding same-sex marriage: a royal commission would keep questions of social values on the public agenda. What interest the 21st-century Canadian state has in Canadian families is certainly worth exploring. Why, precisely, do governments still sanction marriages? Are all religious marriages sanctioned? What's the state's interest in encouraging people to have children? What rules should govern adoption? For tax purposes, how should a couple be considered different from two individuals? Most of the official answers to these questions are hodgepodges of tradition, century-old law, accreted court rulings and modern policy tweaks. Allowing a birth certificate to record three parents' names is just one example. But a royal commission with a broad mandate is a very blunt instrument. Consider the commissions on aboriginals, women and the future of health care -- they produced reports, but not consensus. The solution isn't an endless and expensive cross-Canada tour of public
hearings. Politicians need, instead, to articulate coherent principles
behind the rules that they have established for the state's involvement
in family life, and voters need to insist they do so.
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