Where the Parents Are of the Same Sex: Quebec's Reforms to Filiation

International Journal of Law, Policy and the Family, Vol. 23, No. 1, pp. 62-82, 2009

21 Pages Posted: 5 Jun 2008 Last revised: 30 May 2010

Robert Leckey

McGill University - Faculty of Law

Date Written: July 15, 2008

Abstract

To advance debates on legal responses to parenting by gay and lesbian couples, the paper introduces reforms enacted by the legislature of Quebec, a civil law jurisdiction with a codified private law, in 2002. Quebec's pioneering regime permits two persons of the same sex to register as a child's parents from birth, not only by adoption. They may do so if they conceived the child as part of a "parental project." Moreover, a person alone may have a child via a parental project. The paper identifies the policy choices reflected in the amendments and highlights weaknesses in the drafting, instructive to policy makers in civil law or common law jurisdictions. It emphasizes the structural difficulty of amending the civil law's fundamental institution of filiation to recognize two parents of the same sex. Comparing with ad hoc judicial developments from a Canadian common law province, it underscores the potential in systematic legislative reform. Conservative scholars have resisted the new regime as an inappropriate departure from the pursuit of filiation's biological vocation. The study reveals how selectively jurists may remember the past and how swiftly they may characterize innovations relating to parentage - such as the earlier abolition of illegitimacy - as natural. The mingling of biological fact and fiction in the new regime underscores the similar blending in more traditional forms of filiation.

Keywords: gay and lesbian parenting, parentage, filiation, Quebec, family law

JEL Classification: K19, K30, K39

Suggested Citation

Leckey, Robert, Where the Parents Are of the Same Sex: Quebec's Reforms to Filiation (July 15, 2008). International Journal of Law, Policy and the Family, Vol. 23, No. 1, pp. 62-82, 2009. Available at SSRN: https://ssrn.com/abstract=1140686

Robert Leckey (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada
514-398-4148 (Phone)
514-398-4659 (Fax)

Paper statistics

Downloads
122
Rank
185,423
Abstract Views
1,273