Electronic copy available at: http://ssrn.com/abstract=2180207

Law Reform, Lesbian Parenting, and the Reflective Claim

Robert Leckey*

This paper’s argument concerns the complex relationship between empirical evidence of social

practices and well-intentioned law reform. It is a reminder that reform will not merely reflect

social practices, but also intervene in them, in unpredictable ways. Law reform cannot respond to

all practices in a given area, and so requires choices that are unavoidably normative and

distributive. While the examples vary significantly, the argument might be made using practices

currently partly or wholly ‘outside’ the law such as polygamy, prostitution, or use of prohibited

narcotics. It might be made using commercial practices that secure an obligation, functionally,

whilst evading regulation aimed at charges constituted formally on a borrower’s property. This

paper’s case study is the push for legal recognition of parenting by lesbian couples.

* Faculty of Law, McGill University. This research was supported by the Social Sciences and

Humanities Research Council. For their excellent research assistance, I thank Camille Bérubé,

Anja Kortenaar, and Ilana Ludwin. Thank you to Annmarie Adams, Kirsten Anker, Joanna

Baron, Kim Brooks, Karen Busby, Angela Campbell, Scott Horne, Hoi Kong, Ilana Ludwin,

Desmond Manderson, Alexander Steinhouse, and the two anonymous reviewers for their

comments on earlier drafts. I benefited from feedback when presenting earlier versions of the

work: in the Fall 2010 Family Law class at McGill, as part of the Esquisses series of the McGill

Institute for Gender, Sexuality and Feminist Studies, at a faculty seminar at the Faculty of Law,

McGill University, at a seminar organized jointly by Outlaw McGill and the Vermont Law

School, and as part of the Law & Society series of the Faculty of Law, University of British

Columbia.

Electronic copy available at: http://ssrn.com/abstract=2180207

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The paper begins by distinguishing claims for recognizing lesbian parenting based on

equality from the reflective claim, the idea that law should adapt to existing social practices.

Scrutiny of the reflective claim proceeds in the light of reforms in the United Kingdom (2008)

and in the Canadian province of Quebec (2002). The paper contrasts two features of those

regimes—the status accorded to the non-birth parent, on which they differ, and the two-parent

maximum, on which they agree—with social-science accounts of lesbian parenting. The

empirical literature shows some support for the design choices of both regimes, but gestures to

difficulties with the reflective claim. The reflective claim rests on erroneous assumptions about

social practices and about law. It also overlooks the complex interaction of law and society. As

often cast, the reflective claim fails to do justice to the normative character of law reform,

obscuring the latter’s positive potential and its costs.

A gay-affirmative or antihomophobic stance is adopted. While some objections to

amending family law for gays and lesbians may be irreducible to bigotry or disgust (Case, 2010),

the paper does not address such objections. The operating assumption is that scrutiny of the

reflective claim condemns neither the turn to social practice nor particular reform projects.

Glaring injustice persists where it remains impossible to establish legal bonds between children

and those parenting them. Advocates in court or parliamentary hearings might, understandably,

adopt for strategic reasons a simple, powerful message such as equality or reflection. But legal

scholars’ role is distinct from the advocate’s (Leckey, 2009a). The complexity of law reform,

including its uncertainty and the costs it imposes on those members of sexual minorities whose

families are least like the mainstream, merits fuller discussion than has transpired. So does the

possibility that not all observable family practices should inspire legislative drafters.

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Two Arguments for Lesbian Parents

Constellations of family life involving same-sex couples are increasingly obtaining legal status.

The matter of a civil status for adult couples has generated the most literature, but the relations

between adults and children are also significant. Where conception and birth are concerned, as

opposed to adoption, reforms focus on lesbian couples who use assisted conception more often

than on surrogacy arrangements for gay male couples. With modifications, the arguments framed

in relation to marriage also circulate in the parenting context. Two forms of argument are

distinguishable.

Especially where a bill of rights applies, the call for reform is often cast in abstract terms

of equality. The starting point is the equal worth of different forms of family. Equality, goes the

argument, requires that both lesbian partners enjoy parental status just as do different-sex parents

because they are relevantly similar (e.g. Rutherford v Ontario). The impetus for reform comes

from the horizontal gap between the differential treatments of similarly situated couples. Call this

the liberal equality claim. Canadian theorists would here speak of formal, as opposed to

substantive, equality.

Activists have used this rhetoric of sameness to powerful effect. It has, however,

stimulated vigorous debate amongst gay-affirmative or antihomophobic commentators. Some

internal debate bears on marriage as an end or priority (Sullivan, 1997/2004). But a

distinguishable strand focuses on the liberal equality claim as a means. It is contended that the

liberal equality claim is assimilationist and normalizing, a betrayal of the distinctiveness of non-

heteronormative family practices (from the marriage debates, e.g. Butler, 2004: ch 5). Scholars

have raised the potential externalities from reforms for adult couples shaped by the equality

claim. They point to increased stigmatization of nonconforming sexual relations (Warner, 1999)

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and the exacerbation of conditions for those economically disadvantaged (Young and Boyd,

2006; Polikoff, 2008).

The compass of internal debate on the parentage question is narrower. Gay-affirmative

scholars rarely oppose the quest for empowering a child’s caregivers to make decisions or travel

with the child. Yet parenting raises questions as to the appropriate means, beyond minor matters

of legislative technique. The equality-as-sameness approach has been charged with obscuring

relevant differences, ‘stripping away the social particulars’ of lesbian parenthood (Diduck, 2007:

473). Scholars have criticized laws treating a lesbian family as a heterosexual family created via

assisted reproduction or a birth mother’s female partner as a male spouse (e.g. Kelly, 2009: 190,

222; McCandless and Sheldon, 2010: 206). Such criticisms evoke the ‘limitations of equality

discourses’, the conceptual and practical confines of reforms modeled on traditional family-law

structures (Glennon, 2009). They also connect to a larger rethinking of liberal feminists’ equality

project (Hunter, 2008).

The second approach—the reflective claim—underlies advocacy and research but is

framed less explicitly. It comprises several elements. In its most prescriptive form, argument is

made that law should reflect the existing family practices of lesbian couples already raising

children. Positively, law must ‘catch up’ and ‘acknowledge that children of lesbian couples have

two mothers from the beginning’ (Polikoff, 2009: 207). It should ‘respond’ to the fact of lesbians

raising children (Ettelbrick, 1993: 513-4). Negatively, a family regime can be criticized on the

basis that it does ‘not reflect the reality of [lesbian] family life’ (Polikoff, 2000: 731), or that

there is a ‘gap’ between law’s definition of parenthood or family and the ‘lived realities of actual

family practices’ (Boyd, 2007: 87). Such attention to the facts of family life draws on

sociologically informed functionalist approaches, which focus on ‘the realities of familial

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relationships’ (Bala, 1994: 312; for cautions in the lesbian context, Millbank, 2008). The focus

here is the vertical gap between law and social life. Theoretically, the relevant grounding derives

from feminist political philosophy that, rejecting abstract liberal discourse, calls into question the

priority of rights and points to the significance of care and relationships.

In explicit rejection of the liberal equality claim’s assimilationist bent, the reflective

claim purports to harness law into the service of manifold configurations in which care work is

performed without positing identity with the heterosexual nuclear family. Law should recognize

lesbian difference: the ‘unusual context’ of lesbian-parent families (Diduck, 2007: 477), ‘planned

lesbian families in all their diversity’ (Kelly, 2009: 222), and the ‘unique experiences of lesbians’

(Ettelbrick, 1993: 516, also 553). While there is agreement that law reform must involve

empirical data on lesbian parents, scholars give varying senses of the path from practices to law.

It appears straightforward in talk of legal developments that would ‘reflect our experiences’

(Ettelbrick, 1993: 553) or ‘fit the reality of today’s complex and nontraditional families,

including lesbian-mother families’ (Polikoff, 1990: 468). The path from empirical data to law is

less direct in talk of ‘translating’ the findings from qualitative research into law (Kelly, 2009:

211), and perhaps still less in treatment of empirical studies as ‘instructive’ (Boyd, 2007: 87; also

Diduck, 2007). The latter make space for a process in which knowledge of social practice may be

mediated on its integration into law. What unites this body of literature is commitment to the

normative priority of observable practices.

The two claims are not entirely distinct. At some point, the liberal equality claim touches

down, less abstractly, to establish that same-sex partners are factually comparable to different-

sex ones (e.g. Leckey, 2008: 99-100). But the perceived potential for the reflective claim to duck

criticisms of assimilation and erasure of difference levied against the liberal equality claim

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underscores the sense that they are distinct. As noted, the liberal equality claim has undergone

internal critique. By contrast, the reflective claim has received less scrutiny than is warranted.

For example, while the complexity of law reform informs iterations of the reflective claim to

varying degrees, the scholarship does not explore the ways that such reform would alter social

practices. Nor do scholars regularly acknowledge the tradeoffs in picking out one lesbian family

form or more over others.

Two Stabs at Reform

The UK’s Human Fertilisation and Embryology Act 2008 aimed to address difficulties with the

1990 Act of the same name and to update it in the light of changing social and familial norms,

including the recognition of same-sex couples (e.g. Fenton, Heenan and Rees, 2010). The 2008

Act contemplates that lesbians having a child may both acquire parental status, but only the one

who gives birth becomes a ‘mother’ (s 33(1)). Lesbian civil partners may both attain recognition

as the child’s legal parents whether artificial insemination occurs in a licensed clinic or

elsewhere (s 42). For couples that have not undergone a civil partnership, a woman other than the

mother may be granted parental status only for treatment in a licensed clinic, and on agreed

parenthood conditions paralleling those by which men obtain fatherhood (ss 43-44). Whatever

the circumstances, the second woman is called a ‘female parent’, and under the Act a child may

have, at most, two legal parents.

In the civil law of Quebec, derived from the French tradition, ‘filiation’ is the legal

relationship connecting a child to her mother or father. Quebec’s reforms to the regime of

filiation in its Civil Code arrived in 2002 with the civil union, open to same-sex couples (Leckey,

2009b). With no formalities specified, the mutual consent of spouses to have a child via the

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genetic material of a third party gives rise to a ‘parental project’ (art 538). Contributing genetic

material creates no bond of filiation between the contributor and the child born (art 538.2). A

birth mother’s spouse, of any sex, may establish a bond of filiation with the child without resort

to adoption. When lesbians carry out a parental project, the child has two ‘mothers’ (art 115 para

1). The code contemplates at most two parents (art 532 para 2). Like the Act in the UK, the Civil

Code establishes the parental status of the second mother more easily where she is formally the

birth mother’s spouse (arts 538.3, 114).

Without embarking on a full comparative analysis, one can briefly situate the two

reforms. The UK amended an existing health statute addressing treatment, experimentation, and

consent, a ‘tinkering at the margins’ in lieu of a radical rethinking of reproductive technology

and family (Fox, 2009). With a view to avoiding controversy, the UK drafters quickly bracketed

the question of multiple parents (McCandless and Sheldon, 2010: 191-2), ‘legislating for the

majority of cases’ (McCandless and Sheldon, 2010: 181). By contrast, while discussion in

Quebec included concern for children’s welfare, a major impetus was formal equality for same-

sex couples. Background conditions included a sense, germane to Quebec’s nation-building

project, that its treatment of sexual minorities distinguished it from the rest of Canada (Stychin,

1997). Rather than designing a new family form for gay and lesbian difference, the legislative

drafters favoured identical treatment so far as possible. The civil union copied marriage to the

extent constitutionally permissible (the Parliament of Canada having sole power under the

federal constitution to legislate on ‘marriage’). It incorporated the onerous compulsory regime of

property division imposed in the 1980s to protect economically vulnerable housewives (Roy,

2003). The informality of the filiation regime—a contrast with the detailed consent process under

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the UK’s Act—makes sense when understood as an effort, within family law, not medical

regulation, to replicate the default regime of filiation by blood (Leckey, 2011).

The Practices of Lesbian Mothers

A caveat is in order regarding this paper’s modest ambitions in reviewing the secondary

literature on lesbian parenting. It does not undertake to adjudicate disagreements or assess the

relative merits of different studies. Indeed, the literature reviewed here raises a number of

criticisms. Many studies acknowledge the potentially unrepresentative character of their

interview samples, given the difficulties of recruiting lesbian participants in a homophobic

society. Sample sets may over-represent white, educated, and comparatively affluent lesbians, as

well as underplay sexual orientation’s intersections with gender, class, race, and culture (e.g.

Clarke, 2008: 125-6). Still, a feminist commitment to law connected to women’s experience

underscores the importance of taking account of empirical research.

The Status of the Birth Mother’s Partner

Just as the UK and Quebec legislatures chose different terms for the partner of the birth mother,

so the literature reveals divergent practices. Studies indicate awareness on the part of lesbians

that the unequal positions of the biological and non-biological mothers require negotiation and

effort (Dalton and Bielby, 2000: 50). Kranz and Daniluk (2006: 26) report that the non-birth

mothers in their study often felt invisible as mothers. Concerns about jealousy or inequality may

be especially problematic, given what some report as the lesbian ideal of equality within

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conjugal relationships. Indeed, Ben-Ari and Livni (2006: 529) write that lesbian partners may

experience a loss of equality within the relationship after the birth of a child.

The literature features numerous reports of strategies by lesbian couples for legitimating

the parental, specifically maternal, role of the non-biological mother. Strategies aim to make her

role visible, figuratively and literally. Lesbian couples may select a donor in order to instill a

physical resemblance between the child and the non-biological parent, counteracting the birth

mother’s privileged position as the ‘real’ mother (Jones, 2005). Cutting-edge strategies involve

fertilizing an egg from one partner and implanting it in the other’s womb (reception of oocytes

from partner (ROPA)). By allowing lesbian couples to ‘form a family with two biological

mothers’, that procedure ostensibly provides a ‘more profound’ participation by both women in

the creation of their family than with ordinary donor insemination (Marina et al., 2010: 939). It

should be noted in passing that the assumption that a biological contribution to maternity scores

higher than intention or care is contingent and invites scrutiny (e.g. Iacub, 2004). Strategies after

the child’s birth include naming practices that incorporate the identity of the non-biological

mother (e.g. Chabot and Ames, 2004: 354) and inducement of lactation by the non-birth mother

so as to enable the bonding of breastfeeding (Zizzo, 2009).

Perceptions vary as to the position of the birth mother vis-à-vis her partner. Some studies

suggest that the majority of lesbian mothers view themselves as both parents, indeed both

‘mothers’, with the biological mother only rarely having precedence over the social mother (e.g.

McClellan, 2001: 17). Other findings hint that the perception of equality is less widespread.

While Baetens et al. (2003) found that approximately one-half of the women in their study

viewed themselves as a two-mother unit, other couples saw their family as consisting of one

mother who shared parental responsibility for the child equally with her partner, without the

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latter’s being a ‘mother’. In Ryan-Flood’s (2009: 124) study, a belief in a special mother-child

relationship based on the experience of pregnancy occasionally surfaced.

Those variations play out in naming practices. Brown and Perlesz (2008) identify 45

different terms for describing the lesbian parent who has not given birth to some or all of her

children. Calling the non-biological mother by a term parallel to that used for the biological

mother may be a symbolic attempt to equalize parental identity (Bergen et al., 2006: 207).

Indeed, some co-parents value being identified as a ‘mother’ (Ryan-Flood, 2009: 136). Among

Côté’s (2009: 34) French-language respondents, ‘maman’ was frequently juxtaposed with the

respective given name to denote both women. Meanwhile, Bergen et al. (2006: 208) report that

none of their 16 families reported use of first names for the nonbiological mother.

Such findings contrast with ones that nonbiological mothers were called by their first

name (most common), a special nickname, or the word for mother in a different language (e.g.

Dunne, 2000). Gabb reports that many ‘other mothers’ share unease about adopting the title and

status ‘mother’. Indeed, she suggests that children’s use of the other mother’s given name

positions the latter as neither mother nor father, but instead a complementary individual within

the family (Gabb, 2005: 599). Some prefer ‘parent’ over ‘mother’ for the lesbian who did not

give birth, a more inclusive term for a range of persons who are not biological mothers but care

for and raise children (e.g. Brown and Perlesz, 2008: 459-60). Ultimately, a woman’s identifying

herself as a ‘parent’ rather than a ‘mother’ may yield no definitive interpretation. That lexical

choice may reflect a position of inferiority or a subversion of kinship terms via refusal of the

gendered term ‘mother’ (Jones, 2006: 87).

One can thus connect to significant research Quebec’s decision to name the equal

maternity of two women. Nevertheless, the literature offers some support for the idea that the

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women’s different positions—only one of them having given birth—might lead to different

labels, such as the UK’s ‘female parent’. Thus, while it remains possible to view the UK’s

decision, negatively, as confirmation that ‘Anglo-Welsh legal discourse still cannot countenance

the possibility of two mothers’ (Jones, 2010: 231 [reference omitted]), it may also be read—

whatever Parliament’s intention—as favouring a different strand of existing practices. In short,

the literature indicates that two hypotheses are too blunt: recognition of two ‘mothers’ under

Quebec law is the unequivocally preferred option and the UK’s recognition of ‘female parents’

relative to ‘fathers’ must mean that the law values the two unequally (Fox, 2009: 338). No label

can fully represent the ‘complex ways of doing and negotiating parenting’ of all lesbian-parented

families (Brown and Perlesz, 2008: 465).

The Number of Parents

The two-parent maximum under the UK’s and Quebec’s regimes finds support in some lesbian

mothers’ insistence on confining legal recognition to two parents. In some cases the women

connected this limit to reducing the risk of losing the child or decision-making authority (Ricard,

2001: 76-83). Respondents in Côté’s (2009: 33) study wished to conform to the social norms of

the heterosexual nuclear family. Other accounts address the number of parents obliquely, but it

appears that the two women self-consciously occupy the only parental roles. Many lesbian

mothers distinguish their child’s need for male role models from need for a ‘father’ (e.g.

Goldberg and Allen, 2007). Donors may be known or involved without being considered as

‘fathers’ or co-parents (e.g. Almack, 2006: 17). Conversely, referring to the donor as a ‘father’

need not imply his involvement in the child’s upbringing (McNair et al., 2002: 45). In any event,

it appears that where donors have contact, contact between the child and the donor’s family is

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much less than that between the child and the mothers’ families (Patterson et al., 1998). That

finding might support withholding full kinship from even typical involved donors.

Yet the literature presents some basis for legally recognizing more than two parents. Over

three-quarters of the mothers in Kelly’s (2009) study favoured a child’s having three or more

parents, provided the parties had so agreed before conception. Support for such recognition

derived from the ‘fact that for some families this was already the reality of their lives’ (Kelly,

2009: 207; similarly Ryan-Flood, 2009: 191). Distinct from calls for legal recognition are reports

of co-parenting by a lesbian couple with one or a pair of gay men (e.g. Mitchell and Green,

2007). Such co-parenting is especially prominent in literature from France, which likely testifies

to the legal obstacles in that country to lesbians’ accessing assisted conception services (e.g.

Desjeux, 2006: 119-26). Still, some families having selected that configuration underscore its

advancement of the child’s welfare (Gross, 2007: 69).

It must be acknowledged that recognizing a third parent figure is complicated. The policy

options run from parental status to a secondary status with minimal or subsidiary rights and

obligations. Should parental status be shared or merely parental authority or responsibility?

Perhaps unsurprisingly, the empirical studies do not consistently specify what they mean by

‘recognizing’ more than two parents. As with the question of law’s naming, the number of

parents highlights the challenges of distilling legislative lessons from the social-science

literature. The complexity signaled here ushers in the paper’s principal analysis of the reflective

claim, which relies on unfounded assumptions about social practice and law.

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Material Limitations of the Reflective Claim

Social Practices as Model for Law?

Contrary to the assumptions underlying the reflective claim, the range of lesbian family practices

cannot serve as a direct model for legal reform (nor can social practice in other fields). The

empirical data raise epistemological problems, descriptively and normatively. Descriptively, the

family practices in question are not transparently knowable. There is no unmediated access to the

experience of lesbian families (Scott, 1991). Varying methodologies and conflicting data lead to

disagreements amongst researchers. Their presuppositions shape the resulting interpretations.

Like legal scholarship, empirical research is normative and theory-laden. It does not uncover the

‘truth’ on the ground.

In any case, normatively, evidence of the practices of lesbian family life cannot dictate

law’s response. Just as the judge in a negligence case must decide whether a community’s

current practice sets a suitable standard of care for law, so even a legislative drafter committed to

empirical research must filter observed practices through an evaluative lens. The case of

polygamy is a stark reminder that demonstrated practice of a form of family life—including

some women’s assertions that they choose it—does not produce unanimity as to the appropriate

legal response. Some debate around polygamy focuses on the conflicting evidence as to its

harms, but some is more directly moral or ideological. Similarly, empirical research shows that

many parents having conceived via donated gametes do not disclose that fact to their children,

but law, rather than channelling that practice, may have a role to play in discouraging it

(Golombok, 2009). Like a court, a legislative drafter is ‘not an inert mirror reflecting current

mores but an active participant’ (Fuller, 1978: 378).

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The cultural comparatist would hasten to add that social, cultural, political, and legal

baggage will shape legal actors’ filtering (Legrand, 1999). It will lead drafters in different places

to treat differently data of similar social practices, which may come from a transnational social-

science literature. Such factors constrain the potential for legal change, meaning that law can be

used to push some boundaries at some moments, but not others. It is interesting in this respect

that, while Quebec’s formal equality approach led to both partners’ acknowledgement as

‘mothers’, both its tack and the UK’s cautious tinkering left intact the two-parent norm, a hint of

the latter’s enduring grip.

A further normative complication follows from the contexts of the families studied. Most

accounts of lesbian families describe life under heterosexist or homophobic regimes. Far from

being independent variables, the reported practices may reflect the unfavourable legal and social

conditions in which they emerged (on patriarchy and women’s preferences, see Dubois et al.,

1985). Legal scholars making the reflective claim do not engage in critical assessment so as to

suggest which preferences or practices would desirably survive gay-affirmative legal reform. It is

fair to criticize birth mothers for deploying homophobic doctrine in disputes with their former

partners (e.g. Millbank, 2008). But for purposes of legal reform, evaluation of the practices of

happy, intact lesbian families is necessary too. Calls for law to ‘reflect’ the reality of lesbian-

headed families understate the challenge in delineating the extent to which the observable

practices and views result from complex social and legal pressures subject to critique.

Which of the practices and preferences surveyed above should law makers aim to

‘reflect’? Would lesbians in France who co-parent with gay men do so in the same numbers with

easier access to assisted reproduction? How independent a variable is support for at most two

parents—a conjugal couple of mothers to the exclusion of the sperm donor—from the

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understandable worries of lesbians in many jurisdictions about the security of their parental

status? Would second parents who report feeling less than fully a ‘mother’ perceive themselves

the same way if accorded legal status? Conversely, if law secured the second woman’s status,

would couples deploy the same strategies to establish her full maternity or insist on her title of

‘mother’? Might substantive equality of rights and obligations make the matters of appearance

and naming less urgent?

Whatever philosophers might design in an ideal world, it may be that the slow pace of

social change and lesbians’ internalization of homophobia make it appropriate for law reform to

channel practices or preferences conditioned by homophobic conditions. But it remains worth

reading the empirical accounts critically along these lines.

Law as Blunt Instrument

However rich the family practices depicted by the social science, legal regulation proceeds by

categories that cannot match the endless variety of human life. Translating reality into law is

inevitably a process of simplification and distortion. Recall Borges’ emperor, who commands an

accurate map of his empire, only to find it as big as the empire (Santos, 1987: 282). There is

always a gap between law and the gamut of family formations, always ‘infinitely more things in

life than in the law’ (Carbonnier, 1995: 118). The observation applies to families involving

different-sex and same-sex partners (Noreau, 1999). Just as state law’s recognition of customary

adoption amongst indigenous peoples may be ‘thin’, ‘stripped of some of its core aspects’

(Baldassi, 2006: 64), so the particularity of lesbian parenting may elude the well-intentioned

legislative drafter. Even one alert to the social-science accounts cannot recognize all forms of

lesbian family life in law, but must make choices.

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The unavoidable choices confirm that recognition of lesbian parenting will translate into

law the experiences of some lesbian mothers, not all. The UK’s decision to reserve the status of

‘mother’ to the birth mother validates the perspective of those couples who perceive different

respective positions at the expense of others in which both regard themselves as mothers.

Conversely, Quebec’s recognition of two ‘mothers’ arguably funnels caring and intention

through an ideology of motherhood that may leave some lesbians ambivalent, to say the least (on

butch mothers, see Epstein, 2002).

Even assuming agreement as to the choice of practices to follow, law reform is too unruly

straightforwardly to ‘reflect’ them. Scholars of law reform know that interventions are

refractory—a factor contributing to feminist skepticism about the turn to law (Armstrong, 2004).

Official and unofficial interpreters may construe norms differently than intended by the drafters.

They may apply them in unforeseen circumstances. Differences will arise between the ideal and

the real use of ostensibly normative structures. In a way equivalent to the off-label use of

pharmaceuticals, individuals may deploy legal rules and institutions to pursue objectives other

than those contemplated (for the parallel in architecture, see Adams, 1995). Such inventiveness

may well help to recognize the families of gay men and lesbians. In some jurisdictions, same-sex

couples use the regime of adoption to attach a family status to their relationship. In Quebec,

where surrogacy agreements are contrary to public order, same-sex couples have resorted to rules

for second-parent adoptions that the legislature had conceived for different-sex step-parents.

Moreover, an enactment’s symbolic dimensions may affect the meaning of other norms in ways

unintended (Macdonald, 2007: 1129). In short, law reform will not fulfill its intended objectives

and nothing further.

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Law and Social Practices’ Entwinement

Unintended Effects

Scholarship advancing the reflective claim rarely attends to law reform’s unintended effects.

Some of them will be a surprise, observable only retrospectively. But others can and should be

identified ex ante and factored into the cost-benefit analysis of family-law reform.

While the call for law to ‘reflect’ or ‘fit’ the practices of lesbian-headed families implies

them to be fixed, legislating for a form of lesbian family life will alter them. Queer critics have

elaborated this point convincingly in the context of marriage: it is facile to speak of the ‘choice’

resulting from reform without acknowledging that the obtainment of new possibilities redirects

energies and desires (Warner, 1999: 96-8). Legal norms induce negotiations and decisions

around them. Recognition of one form of lesbian parenting will alter the background conditions

for decision making by lesbians and their potential sperm donors. Reactions to changes may be

especially unpredictable in family law, where rational self-interest may impel conduct even less

than usual (Barlow et al., 2002).

Consider the decision in the UK and Quebec to recognize at most two parents. In

jurisdictions that grant no recognition to a second mother, lesbians seeking to have a child

choose a family configuration—two women, two women and an involved donor, and so on—

amongst a range of legally unrecognized kinship possibilities. Once law endorses one model for

lesbian parenting, the choice becomes whether to take up the model in which legal and social

parenting correspond or to adopt one in which they align less. Lesbian parents are likely to feel

‘channelled’ towards the model of two parents in a formalized conjugal relationship (Wallbank,

2010; also Zanghellini, 2010).

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In the reform process, in which choices and tradeoffs are inevitable, ‘social judgments are

made and costs enacted’ (Robson, 2000: 708). Forms of family life not recognized, such as

configurations with more than two parents, will be further marginalized; ‘relocating the

boundaries of family will inevitably result in a new series of exclusions’ (McCandless and

Sheldon, 2010: 207 [footnote omitted]). Significantly, even procedural choices distribute their

costs and benefits unevenly. The choice to permit registration of a second woman on birth

documentation avoids the expense, delay, and invasive scrutiny of adoption proceedings

(Polikoff, 2009). But it disserves family forms, such as a three-parent arrangement, that might

benefit from an enlarged judicial discretion to confer parentage in a particular child’s best

interests (AA v BB). Even if judges working in the interstices of a two-parent regime recognize a

third parent, such recognition will stand as exception to the legislatively validated norm.

Finally, legislative recognition of one family form may harm the chances for later

recognition of others. The first reform may reduce the perceived scope of the problem, and its

beneficiaries may defect from the coalition that initially united them with those whose families

remain unrecognized. For instance, the Civil Partnership Act 2004’s consensual status for same-

sex couples disbanded what had previously been a constituency of gay couples and unmarried

cohabitants united by being outside marriage (Glennon, 2008).

Choice as Solution to Observable Diversity?

One response to the range of observable practices and the exclusionary effect of favouring one is

for a legislature to set out options. A regime might allow the partner of a lesbian birth mother to

select the status of ‘mother’, ‘other mother’, ‘co-parent’, or ‘other parent’. It might ascribe

parentage to lesbian couples while the consensual addition of an additional parent, be it a known

19

sperm donor (British Columbia, 2010: 39) or other person (Millbank, 2008: 165; Kelly, 2009,

213). Such an approach appears, attractively, to refrain from imposing a single, essentialist

model on women’s diverse lives (Spelman, 1988). Yet its potential consequences for the parties

and for third parties, such as state actors, require unpacking.

Perhaps most obviously, complex models intended to make space for multiple

configurations—one empirically grounded proposal combines automatic presumptions, opting-

in, and judicial discretion (Millbank, 2008: 165)—may be harder to use and generate more

uncertainty and disputes. Whatever their failings in the light of the diversity of lesbian-headed

families, the approaches taken by the UK and Quebec can claim the virtue of relative simplicity.

Moreover, from the perspective of lesbians contemplating parenthood, the insights of

feminist socio-legal scholarship trouble the supposition that lesbians (and their donors) would

simply ‘choose’ the model best suited to them (e.g. Hunter and Cowan, 2007). Anthropological

and sociological use of the lexicon of ‘choice’ for highlighting the constructed character of gay

or queer family life should not imply unencumbered subjects inhabiting a zone of unconstrained

choosing (e.g. Weeks et al., 2001). Lesbians determining their parenting practices operate within

social and institutional contexts and respond to legal and cultural constraints (Mezey, 2008).

Once there are options, informal norms will infuse the space of decision making. They

will code some options as ‘better’ or more ‘responsible’ than others (Bridgeman, Keating and

Lind, 2008). Given the lasting legal and cultural investments in fatherhood (Collier and Sheldon,

2008), and the persistent oversight of mothers (e.g. Lee and Bristow, 2009), recognizing a donor

in addition to a lesbian couple might emerge as the ‘choice’ of ‘good’ lesbian mothers. It might

colour as irresponsible the decision to deprive a child of a father by recourse to anonymous

donor sperm.

20

As for state officials, options might dilute the practical value of parental recognition by

diminishing what economists would call the signalling effect (Bishop, 1984). One of several

species of parental status might less readily evidence decision-making authority in interactions

with school officials, medical personnel, and other state agents. Furthermore, the unwritten

hierarchy of options could be expected to influence judges and their conception of a child’s best

interests in the borderline cases in which, say, the parties’ intention regarding the third-parent

opt-in was unclear (Kelly, 2004: 175-76).

Perhaps, all things considered, an option for legally recognizing a third parent is the best

policy. But there are many things to consider beyond the fact that some familial configurations

already include multiple parent figures.

Intended Effects: Shaping New Realities?

The decisions confronting reform-minded legislatures are not limited, quantitatively, to how

many or which varieties of existing social life to recognize. They also include a qualitative

dimension in terms of the robustness of the social engineering undertaken. At times, law reform

aims not ‘to reflect a new social reality’ but ‘to create a new reality—to preemptively enact

changes to a system in order to change behavior within that system’ (Macdonald, 2007: 1128).

Thus a legislature, such as Quebec’s, might enact the equal maternal status of two women

in repudiation of some women’s perceptions of themselves as less than fully a ‘mother’. It could

do so legitimately if able to justify the policy in terms consistent with public reason, such as

equality, including rejection of preferences conditioned by homophobia and heterosexism. There

is precedent in Quebec for such social engineering. In 1980, the legislature asserted the equality

of wives relative to men in the face of prevailing practice. It decreed that, contrary to women’s

21

customary taking of their husband’s name on marriage, both spouses would keep their respective

names (Deleury and Goubau, 2008: 244). A more general example is the establishment of the

equal status of adopted children relative to ‘natural’ children, crucial in the law of trusts and

wills. Legislatures made no empirically informed effort to preserve a lesser status for any

adopted children who felt inferior to children born into the family. More recently, the perceived

plight of Muslim women has inspired legislative initiatives that advance one conception of

equality in knowing rejection of social practices (head covering; religious resolution of family

disputes). At times, then, a legislature may implement an equality agenda with a view to

overriding individuals’ perception and practices. Law’s response to lesbian parenting should be

assessed for its success in responding to social life and for the vigour (and justifiability) of

governmental steering.

From this angle, the UK’s regime was less bold than Quebec’s in asserting the equal

status of the two women, provided one accepts that ‘female parent’ is per se inferior to ‘mother’.

One might similarly assess the UK Parliament’s preference for ‘civil partnership’ over

‘marriage’ for same-sex couples. Acknowledgement of the varying objectives of legislative

reform enlarges the analytical tools available to scholars studying lesbian parenting and other

issues.

Conclusion

While there are reasons for scholars to maintain their calls for law reform in response to lesbian

parenting to be empirically grounded, this paper has aimed to flag the complications of such

efforts for fuller discussion. More than acknowledged by scholars working in this area, holding

up on-the-ground practices as inspiration for law reform requires normative evaluation. It

22

involves determinations as to the patterns prominent enough to warrant inclusion in what will

inevitably be an incomplete regime. Moreover, the likelihood that some observable practices of

lesbian parenting bear the imprint of heterosexist and homophobic legal and social conditions

means that such practices cannot be taken uncritically as a plumb-line for legislative policy.

Attention must also be given to the ways that legislation will alter the practices it aims to

recognize, as well as to the impact on family forms not recognized. In a scholarly setting, it is

disingenuous to presume that reforms, even those determined to be the most desirable, are

costless. The reforms in the UK and Quebec, for instance, most marginalize those whose kinship

configurations are least like the two-parent nuclear model.

At least two avenues for further research are identifiable. One is empirical study of

lesbian parents in jurisdictions having secured parental status for the birth mother’s partner. It is

too soon for substantial research along these lines from the UK and Quebec. But it will be

important to observe the impact of legal status on the use of social and biological strategies for

asserting the maternity of the birth mother’s partner. The other is theoretical exploration of the

links between the liberal equality and the reflective claims. The two might merge into a

materially grounded, context-sensitive conception of substantive equality, one committed to

honouring different individuals’ equal moral worth without presuming their sameness.

While it would be foolish to exaggerate the harms flowing from the literature’s use of the

reflective claim, direct engagement with the issues raised here stands to benefit scholarship and

reform strategies. Whether on the question of lesbian parenting or others on which law seems out

of step, such engagement stands to enhance our understanding of the intricate, iterative

relationship between scholarship, advocacy, law reform, and social practices.

Cases

AA v BB 2007 ONCA 2, 83 OR (3d) 561.

Rutherford v Ontario (Deputy Registrar General) (2006), 81 OR (3d) 81 (SCJ).

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