Same-Sex Parents and the Law

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Manon and Rachida are two women who have been living together for five years. They want to have a child together. They are wondering if the fact that they are a same-sex couple will affect their status as "parents". For example, if Rachida gives birth to the couple's child, what will Manon's status be? Will she be considered a parent?

In this article, Éducaloi explains the family relationship that unites a child to parents when the parents are a same-sex couple. The law calls this relationship "filiation".

What is filiation?

Filiation is the family relationship that unites a child to his or her parents.

It is one of the most important relationships that can exist between two people. Being the mother or father of a child means making the important decisions about the child and taking care of the child's education and needs. To learn more about this relationship, read our article Filiation: the Legal Link Between Parents and Children.

How does filiation come about?

The law only recognizes three types of filiation:

  • by blood
  • by adoption
  • through something the law calls a "parental project" of a person or a couple (same-sex or not)

Filiation cannot be based only on the psychological bond between a child and an adult.

What is a "parental project"?

A parental project is the decision to have a child using the sperm or egg of another person.

That other person must intervene to give the sperm or the egg, but that person's participation ends there.

Here are a few examples:

  • Two women go to a medical clinic so that one of them can be artificially inseminated with the sperm of a donor.
  • Two women want to have a child and ask a male friend to help them by having sex with one of them. The friend must be fully aware that his sole purpose is to furnish the sperm. He must understand and agree beforehand that these women will be the parents of the baby and that he will not be the father.
  • Two women "collect" the sperm of a male friend who agrees to give it to them to help them become parents. The collected sperm is then injected into one of the women without the help of medical personnel. The two women look after the process themselves.

Can there be filiation between a child and each of the two men in a couple?

Currently, the only way two men can be legally recognized as the parents of a child is through adoption. More specifically, there are two options:

  • One of them adopts his partner's child.
  • Both adopt a child together.

They can't form a "parental project because that would involve using a surrogate mother, and agreements with surrogate mothers are not valid Quebec.

A surrogate mother is a woman who agrees to lend her womb to carry the baby. Sometimes, she also gives the eggs necessary to conceive the child. Once she delivers the baby, she gives it over to the people who retained her services.

If two men use a surrogate mother, the child's parents will be the biological father and the surrogate mother since the surrogate agreement is not legally valid.

I am pregnant with a child conceived using artificial insemination. Will my female partner have a link of filiation with the child?

Yes, but only if you had a "parental project" with your partner before you got pregnant.

If you did have a parental project beforehand, your partner will have a link of filiation with the child.

But if the child was not part of a parental project, the only way for your partner to establish a link of filiation is to adopt the child after it is born, if adoption is possible.

How do you prove filiation between a child and two mothers?

There are four ways of proving filiation:

  • By the "act of birth" of the child. After birth, a document called the "declaration of birth" must be filled and sent to a government agency called 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.
  • By something called "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. That means that from the time that the child was born, she acted like a parent, considered herself as a parent and was recognized as a parent by her family circle. The possession of status must be uninterrupted for a fairly long period of time. Also, the child must have been born in the context of a parental project of the two parents.
  • By "presumption of parenthood". When a woman is married or in a civil union, it is presumed that she is the mother of a child born to her partner in the context of a parental project.  She will also be presumed to be the mother if the child is born within 300 days of the dissolution or annulment of the marriage or civil union.
  • By "voluntary acknowledgement". If the status of a parent cannot be proved by any of the three ways mentioned above, the person can try to prove it by stating that she is the parent of the child.

Establishing filiation gives the mother's partner the same rights and duties as the mother.

We are a couple made up of two women. Since the beginning of our relationship, I have treated my partner's son as my own. Can I claim filiation with him?

No. Psychological parenthood is not recognized by the law. It does not make a difference if couple is same-sex (including a couple made up of two men) or heterosexual. Filiation does not come about throug the feelings or the relationship between the adult and the child.

For example, let's say that Stephanie moves in with Roxanne and her one-year-old son, James. Although Stephanie treats James as her son in every way and James calls her "mommy", 10 years down the road, she will still not be recognized by the law as James' mother. Stephanie does not have any filiation with James. If Stephanie wants to be recognized as James's mother, she will have to adopt James. If James already has a father or a second mother, Stephanie might not be able to adopt him.

Remember that, under the law a child cannot have more than two parents.

But just because there is no filiation between the adult playing a parenting role in a child's life and the child does not mean that the law ignores the attachment between them.

See the following questions for details:

We are a same-sex couple made up of two women who want to have a child. A male friend has agreed to help by having sex with one of us. What will his status be?

It depends.

Remember that the biological father who offered to help with the "parental project" must agree from the beginning that he will not be the baby's father.

However, the law gives the biological father who had sex with one of the women one year from the baby's birth to change his mind. In other words, the biological father can claim filiation with the child by taking the appropriate steps.

The law does not allow a sperm donor to claim filiation with the child. Only the man who had sex is given this option.

If the biological father decides to claim filiation before the one year deadline is up, the status of the same-sex partner of the mother will be put into question.

Remember that, by law, a child can only have two parents.

My same sex spouse and I want to adopt a child. Can our sexual orientation be used to prevent us from adopting?

In Quebec, the Charter of Human Rights and Freedoms says that no one can discriminate 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. Countries with children available for adoption can therefore choose the type of parents they are looking for in accordance with their own laws. Some countries exclude same sex couples.

Important !
This article explains in a general way the law that applies in Quebec. This article is not a legal opinion or legal advice. To find out the specific rules for your situation, consult a lawyer or notary.