International Journal of Law, Policy and the Family Advance Access originally published online on January 29, 2009
International Journal of Law, Policy and the Family 2009 23(1):62-82; doi:10.1093/lawfam/ebn014
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‘Where the Parents are of the Same Sex’: Quebec’s Reforms to Filiation
* Faculty of Law and Institute of Comparative Law, McGill University.
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Abstract |
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To advance debates on legal responses to parenting by gay and lesbian couples, this article 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 article 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.