Filiation is established exactly in the same way as for a heterosexual couple. Filiation is the legal link which unites a child with his parents. Filiation is the legal recognition that a man is the father of a child or a woman is the mother of a child.

There are four ways of establishing filiation:

• By the act of birth of the child. After birth, a document called the “declaration of birth” must be filled and sent to the Registrar of Civil Status. The parents write their names on this document and these names are recorded on the child’s act of birth. This is the main way of establishing filiation: the other ways are used if this way cannot be used.
  
  
• By uninterrupted possession of status. If a person’s name does not appear on the child’s act of birth, she can establish her filiation by uninterrupted possession of status. A person has uninterrupted possession of status when she acts like a parent, considers herself a parent, and is recognized as a parent by her family circle. The possession of status must be uninterrupted for a long enough period of time.
  
  
• By presumption of parenthood. When a child is born while a couple is married or in a civil union (or within 300 days of the dissolution or annulment of the marriage or civil union), the married or civil union spouse is presumed to be the parent.
  
  
• By voluntary acknowledgement. If the status of a parent cannot be established by any of the three ways mentioned above, it can be established by a voluntary declaration of a person stating that she is the parent of the child.

It is important to note that uninterrupted possession of status can only be used to establish the filiation of the mother’s spouse if she and the mother undertook a common parental project with respect to the child.

Apart from these four ways of establishing filiation, the filiation of a child can also be established:

• By adoption. Adoption replaces the original filiation with a new filiation. The parent who adopts a child has the same rights and obligations as a biological parent.
  
  
• By judgment. Sometimes, none of the four ways of establishing filiation mentioned above can be used or filiation is contested. A parent who wants to see his rights recognized (or extinguished) or who wants to get financial aid must go to court and prove his filiation using one of the ways of establishing filiation mentioned above. The parent must support his arguments using all available means: photos, testimony, DNA evidence, etc.

The establishment of filiation gives the mother’s spouse the same rights and obligations as the mother. To find out more about this topic, read our Infosheet entitled Filiation: the legal link between parents and children.

Currently, the only way that two men can be legally recognized as the parents of a child is if they adopt the child.

There is no presumption of parenthood in favour of a father’s spouse. An agreement with a surrogate mother who agrees to give her child to the couple after pregnancy is invalid in Quebec. Therefore, a couple cannot legally force the surrogate mother to give her child to them, if the mother refuses to do so.

No, the same sex spouse of a woman who gives birth to a child can write her name on the declaration of birth in order to be recognized as a parent. Her filiation can also be established by uninterrupted possession of status.

However, as explained in the previous question, a couple composed of two men must adopt a child in order to establish filiation.

When a child is born as a result of assisted procreation, for example, after artificial insemination, the parent can try to establish her filiation with the child using all of the ways available to establish filiation. For example, the parent could demonstrate uninterrupted possession of status; couples who are married or in a civil union could invoke the presumption of parenthood.

If there is a sexual relationship between the friend and the child’s mother, the same sex spouse of the mother cannot have herself recognized as a parent immediately. The man who helped conceive the child has one year after the birth of the child to have his paternity recognized. Therefore, the filiation of the same sex spouse of the mother will remain uncertain for one year, the period during which the biological father can decide whether or not he wants to establish his filiation with the child.

To find out more, read our Infosheet entitled Assisted procreation.

In Quebec, the Charter of Human Rights and Freedoms forbids discrimination based on sexual orientation. The sexual orientation of the parents will therefore not be a valid reason to prevent same sex couples from adopting a child in Quebec.

However, this law does not apply outside the borders of Quebec. Foreign countries that have children available for adoption can therefore choose the type of parents that they are looking for in accordance with their own laws. Some countries can exclude same sex couples.

For more information, read our Infosheets entitled Adopting a child in Quebec and
International adoption.