Two Mothers in Law and Fact

Abstract:     
What is the proper balance between legislative and judicial innovation and between formal and functional family recognition once legislatures have recognized gay men’s and lesbians’ families? In the civil-law jurisdiction of Quebec, legislative reforms allow two women to register as a child’s mothers. But judges have recognized a second mother ‘in fact’ by orders sharing custody where the parties had not used the new legislative channels. Such judicial creativity is reconcilable with the civil law and comparative scholars should flag it as a valuable resource. But it risks undermining legislative choices about family recognition. Perhaps the option to give a child a second mother includes the choice for a lesbian birth mother not to do so. Once two women become thinkable as spouses and mothers, judges might inappropriately press a rich range of queer kinship possibilities into standard models.

Number of Pages in PDF File: 32

Keywords: lesbian mothers, child custody, civil law, comparative law, functional family, feminist comparative law

JEL Classification: K1, K19, K30

Accepted Paper Series