Navigating the Unchartered Waters of Modern Families

 http://www.cbc.ca/radio/thecurrent/the-current-for-february-21-2017-1.3991287/how-two-friends-fought-to-be-legal-co-mommas-to-a-7-year-old-boy-and-won-1.3991307

http://www.cbc.ca/radio/thecurrent/the-current-for-february-21-2017-1.3991287/how-two-friends-fought-to-be-legal-co-mommas-to-a-7-year-old-boy-and-won-1.3991307

A couple of recent news stories have highlighted the way that science, society, and the legal system are changing the definition of what it means to be a family. Just ask Natasha Bakht and Lynda Collins. Ms. Bakht and gave birth to her son, Elaan, seven years ago after using a sperm donor to get pregnant. From the moment Elaan was born, Ms. Collins was there for the family, eating meals, attending appointments, even joining them on holidays. Both women felt Ms. Collins had become a second momma to Elaan. But since they were not a romantic couple, it was not easy to for Ms. Collins to become Elaan’s adoptive parent. Read more about Elaan’s two mommies.

In past generations, it was common for people to start having children in their 20s. Today, it is quite common for people to wait until their 30s before starting a family becomes a priority. I guess 30 is the new 20 when it comes to starting a family. Unfortunately, it is more difficult to get pregnant after 30, and is relatively rare after 40. When couples realize they are not start a family in conventional way, they are looking to, and embracing non-traditional family structures.

As well as novel parenting relationships, medical advances in fertility treatments and surrogacy have made it possible for many people to have children who would not have been able to in the past. Sperm, egg and embryo donation, as well as in-vitro fertilization, have created new types of relationships between people where the rights and obligations are not always clear. Read more about co-parenting here.

Advances in fertility treatment have run parallel with a steep drop in infant adoption rates in Nova Scotia. The Department of Community Services estimate they have only placed 10-15 per year in the past few years. International adoption has also become far less common than it was even 10 years ago. International adoption is not only very expensive, but due to human trafficking and other concerns, it has become a much more strictly regulated practice.

In the midst of all these medical advances lie potential pitfalls for families and the legal system as they grapple with difficult questions. What sort of rights should sperm and egg donors have? Should children born of donated tissue have access to health and genetic information from donors? What happens if a surrogate decides she wants to keep the baby she gave birth to?

In traditional nuclear families, especially where the couple was married, they could rely on existing laws to guide them in dealing with conflict and outlining the parties’ rights and responsibilities. But in areas where the science and societal attitudes are changing, the law is not always able to keep pace. For example, Ms. Collins had difficulty when she tried to adopt Elaan. The law in Ontario at the time only allowed a couple to adopt if they were in a “conjugal” relationship. Fortunately, both Ms. Collins and Ms. Bakht are lawyers and they were able to convince the court it was Elaan’s best interest to grant the adoption.

Perhaps it is a sign of the times that there is now a social networking website “Modamily” that helps people find a co-parenting partner. The website is set up like other dating apps, except instead of romance, people are looking for a compatible person to raise a child with. Modamily states they have over 2,000 members. The Modamily website includes a section on legal rights and encourages members to sign an agreement outlining each person’s roles, responsibilities, and how they can resolve disputes.

As is often the case, the law will struggle to keep up with changes in technology and societies attitudes. No matter how families come together, we should honour and support them. If you are considering using assistive reproductive technologies, adoption, or a co-parenting relationship, it is a good idea to speak with a lawyer about how to protect yourself and your family.

If you are experiencing a family law issue schedule a consult now or call Highlander Law at 902. 826-3070 to set up a no-obligation consultation with one of our lawyers.

By Peter Duke, JD

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