A Canadian court has upheld a ruling that names a gay man the legal father of his former partner’s daughter.
The decision is expected to be the first of many where legal parentage and custody rights are re-examined in light of changing laws on same-sex marriage and assisted reproduction.
‘Harry’, whose name along with the rest of the other parties to the case has been changed to protect the child’s identity, originally shared guardianship of his partner ‘Rick’s’ biological daughter for the first three years of her life.
The girl’s biological mother is ‘Diana’, one half of a lesbian couple with whom Rick and Harry had an agreement when the girl was born in 2003: the couples would conceive using genetic material from one member of each pairing; the men would raise the first child born from this arrangement, and the women would raise the second.
When the two men broke up three years later, the biological parents Rick and Diana agreed that Rick would maintain primary custody.
Harry was not eligible for ‘parentage based on intent,’ a right that is afforded to non-biological parents in the case of adoption or surrogacy, because he was not married to, nor participated in assisted fertilization with the girl’s biological mother.
Now ten years old, the young girl has been living with her biological father and guardian Rick since her two dads broke up in 2006.
The new ruling naming Harry a legal father keeps the girl under Rick’s guardianship, but now gives Harry the right to challenge custody arrangements for increased access to the girl.
Professor Nicholas Bala, a child law expert from Queen’s University Faculty of Law, told Canada’s National Post the decision draws attention to two legal trends taking place in custody and family arrangements: recognizing the importance of ‘social or psychological’ parents and addressing the new parenting parameters as a result of reproductive technologies, including invitro fertilization and surrogacy.