Family as Status in Doe v. Canada: Constituting Family Under Section 15 of the Charter
National Journal of Constitutional Law, Vol. 20, p. 197, 2007
18 Pages Posted: 10 Nov 2009
Date Written: 2007
The Ontario Court of Appeal recently released a decision rejecting a constitutional challenge to the Processing and Distribution of Semen for Assisted Conception Regulations. In this paper I argue that the Court’s reasoning in Doe v Canada is flawed and that certain provisions of the Semen Regulations constitute an unjustified infringement of section 15 of the Canadian Charter of Rights and Freedoms. I also argue that the claimants in this case would have been better served by the jurisprudence of section 15 of the Charter had they premised their argument on the assertion that they were discriminated against on the basis of family status rather than sexual orientation. Such an approach would be preferable both in terms of avoiding the pitfalls of the formal equality approach to section 15 adopted by both levels of court in this case, in addition to providing a more inclusive and progressive litigation strategy for acquiring legal recognition of familial relationships which deviate from the hetero-normative paradigm assumed by the Semen Regulations.
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