Classes are back in session and there’s no rhythm to it yet, which is why I’ve been absent here. But maybe from now on…..anyway, one can hope.
I’ve been thinking about this story for some time. Selena Kazimierski and Nicole Lavigne are a lesbian couple who wanted to raise a child together. They live in Ontario, Canada.
Rene deBlois was a high school friend of Lavigne. He agreed to provide sperm for the couple. It appears that he signed an agreement saying he would never contact the child. Tyler Lavigne was born in October, 2010.
(As an aside, I think it is interesting that the news story does not say which woman gave birth to Tyler. I will assume for the moment this is reflects a choice made by the women not to include this information. (I could be wrong, of course–it could just be the reporting.) Assuming it is a choice, it is an unusual one and one that I respect.)
DeBlois now rejects the agreement. He asserts this is partly because Lavigne had verbally promised to have a child for him and she has reneged on this commitment. (I think we’re left to wonder about what else has contributed to his rejection of the agreement. He has sued to claim paternity rights–presumably based on his genetic connection to the child. (You can see that he would have no claim based on intention, given the agreement he signed, nor can he claim to have functioned as a parent. Neither is he married to the woman who gave birth–so genetic connection must be what he relies on.) The case is scheduled for trial in October. Given the unsettled and underdeveloped state of the law in Canada (which is not unlike the state of the law many places), this could be an important legal development.
But this is not actually what brought the case to the newspaper just at this time. DeBlois sought access to the child pending the trial. Tyler, who is now 22 months old, has never met DeBlois. Tyler’s mothers opposed the request. The judge, Justice Norman Karam, sided with the mothers. There’s a pull-quote in the article that I think must be taken from his opinion:
It is common sense to delay creating a relationship between a child and a stranger unless there is a guarantee that the relationship will continue
This is consistent with the mothers’ argument that allowing access now could actually effect the outcome of the trial. (I think this is because if there were access now, deBlois might invoke the relationship he forms as a basis for claiming parenthood at the trial.) Essentially what the judge did here was maintain the status quo until the trial.
Now I recognize that some of you will say this comes at a cost–the cost being that for two more months Tyler will not interact with deBlois. But I’m not sure what meeting his genetic father would mean to a 22-month old. What would he understand about who this person was? To my mind, not much.
From my perspective, the key thing is to appreciate the undecided legal issue that lurks at the heart of this case–which is whether deBlois is a legal parent. It would be good to know what the effect of an agreement like the one signed by the parties here is–not just for the people involved here, but for all the people in the future who might think that this is the way they’d like to form their families. It would be good to know what the effect of a oral side-agreement is, too.
And this all leads me to a slightly different way of thinking about what is going on here: If de Blois’ is not recognized as a legal parent (and he isn’t yet) then the legal parent or parents (I’m not sure how many there are–which is to say whether both women are legal parents) get to decide whether Tyler sees him. They have (or she has) for the moment said “no.” A judge doesn’t get to overrule the decision of a legal parent absent some fairly special circumstances, and so the judge here is right to defer. He’s also right (in my view) to move cautiously.
If this case continues it may well present an opportunity for determination of some significant issues about parentage in Canada. I’ll try to keep an eye on it. I realize that for some the answer is going to be easy–because the genetic connection is clear. But it looks to me like the court will more likely take this case as one that presents important issues about the enforceability of various agreements that were made here. I’ll try to keep a watch on it, but if anyone else sees further coverage of the case, do feel free to flag it for me.
One closing thought: Cases like this–where clearly whatever it is the parties have planned has gone badly awry and you end up in litigation–make the use of anonymous sperm providers look awfully appealing. I don’t know anything about why the women here chose to go with a high-school acquaintance as sperm provider. Maybe they hoped that someday they would choose to introduce the child to him. But whatever the reason, you’d have to think that their second guessing that choice at this point.