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A federal court's decision to deny an adoptive B.C. mother maternity benefits is pushing adoption advocates to seek changes to the country's laws surrounding leaves for new parents.

The Vancouver mother's lengthy court battle has raised thorny questions about the differences between birth and adoptive parents. The decision was a severe setback for adoption advocates, who have mounted a series of unsuccessful court challenges over the years in an effort to win the same leave benefits as birth mothers.

"It's got to be political will that finally changes this," says Doug Chalke, executive director of Sunrise Family Services Society, a Vancouver-based adoption agency. "After seeing so many legal challenges go this way, that's my only conclusion."

The Federal Court of Appeal ruled last week that Patti Tomasson did not qualify for maternity benefits when she adopted her children in 1999 and 2003 because she did not undergo "the physiological and psychological experience resulting from pregnancy and childbirth."

The federal court found that Ms. Tomasson was only entitled to parental leave, which is a portion of the total paid leave available to birth mothers.

Ms. Tomasson has vowed to appeal her case to the Supreme Court.

"I really didn't expect this," says Karen Madeiros, executive director of the Adoptive Families Association of B.C. "It's been a big blow."

Ms. Madeiros and other advocates are now exploring alternative means of achieving parity between birth and adoptive parents. "We'll keep at it," she said. "We'll be looking more at political change. We've had to go that route before."

Earlier this year, the adoption lobby successfully pressed the federal government to pass a bill allowing children adopted overseas to acquire citizenship early in the adoption process.

Several courts have ruled that the 15-week maternity leave should be reserved for mothers who give birth. Adoptive parents are only entitled to take parental leave, which, since 2001, has been 35 weeks. Birth parents can combine the two leaves, for a total of 50 weeks.

But adoption advocates contend that 15 weeks is far more time than the average mother needs to recover from the physical stresses of childbirth and that much of it is actually spent bonding with a new child. Providing birth mothers more time to bond renders the benefit system unfair, they contend.

"If there is bonding and attaching time, our children have a right to that time," Ms. Madeiros says. "We were trying to make a case that processes are similar."

But some maternity experts disagree, saying that the birthing process puts physiological stresses on a woman's body that adoptive parents may not recognize.

"Maternity benefits exist to recognize the unique experience of pregnancy," says Amy Mullin, a University of Toronto sociologist and author of Reconceiving Pregnancy and Childcare: Ethics, Experience and Reproductive Labor. "During pregnancy, a woman can undergo hypertension, nausea, heartburn and a number of other things. It's not the norm for pregnancy to be completely easy. The government has recognized that embodied experience and I hope they continue to do so."

Ms. Mullin stressed that the 15-week leave can start up to eight weeks before pregnancy, addressing any prebirth health concerns.

"That gives a mother six weeks to recover after her pregnancy," she said. "I wouldn't say that's out of line."

The federal court stated as much in its final decision. "Exact parity between biological and adoptive mother would result, in my view, in discrimination against biological mothers," wrote Mr. Justice Marc Nadon in the final decision.

But advocates insist that adopting a child brings with it a spate of challenges for which they deserve special leave. It typically takes an adopted child longer to bond with new parents.

"If a child is coming from an orphanage, then there are specific attaching techniques that involve holding, caring, snuggling and paying attention to the child that really requires a lot of individual attention," Sunrise's Mr. Chalke says.

"Biological parents don't have to worry about these things that social workers and psychologist recommend that you do to help a child move past [his or her] deprived past."

Legal experts generally agree with the federal court decision, but suggest that the continuing debate over adoption benefits may point to outdated laws governing the country's employment insurance policies.

"Perhaps parental and maternal benefits shouldn't be tied to employment at all," said Gillian Calder, a University of Victoria law professor specializing in employment benefits, who added that Quebec opted out of the federal benefits program and now delivers its own program. "We have a parental and maternity benefit regime that is out of step with today's families."