Does each of us have a right to know, where possible, through whom life travelled down the generations to us? Do other individuals and society have obligations not to intentionally make it impossible for us to know? Do adopted children have a right to maintain ties with their biological families, unless that is contrary to the "best interests" of a particular child? These and many other questions about children's rights are raised in a recent opinion piece by my colleague Robert Leckey in The Globe and Mail.
First, the illustration accompanying Prof. Leckey's article in the newspaper version of this piece merits noting. It shows two adults and a child, each emblazoned with a heart symbol. This visually sums up Prof. Leckey's definition of a family. This view holds that children's only essential need from a family structure is love - love defines a family, and it doesn't matter who provides that love. It could be the child's own biological parents, an unrelated adoptive opposite-sex couple, a same-sex couple, a single person or some other family configuration.
Let me be clear: Love is essential for children's well-being. But is it sufficient, or should biology still play a role in defining a family and children's rights regarding that family? Should what constitutes a family be simply a matter of adults' personal preferences, with biological bonds having no necessary role?
The impact of legalizing same-sex marriage is relevant here. The 2005 Civil Marriage Act redefined parenthood from biological or natural parenthood to legal (and social) parenthood - that is to say, legal bonds replaced biological bonds as the basis of the family. In short, Canada changed from a biologically based family structure to a "personal preferences" model.
France took a different path. Relying on an extensive report, the French government rejected legalizing same-sex marriage, choosing instead the pacte civil, the civil union, expressly because same-sex marriage would give priority to adults' rights to create "diverse" families, as Prof. Leckey terms them. The government decided this was not in children's best interests. Civil unions do not have this effect, because they carry no right to found a family.
The draft bill tabled last week in Quebec deals with both open and simple adoptions.
Open adoptions, which can allow adopted children to know the identify of their biological parents, are now the norm in countries like Canada.
Simple adoptions are a more novel idea. A child receives a new adoptive parent or parents, who assume the primary responsibility for care. But they also preserve the legal bond connecting the child to birth parents and birth family.
Prof. Leckey describes simple adoptions as a "troubling proposal" and criticizes Quebec for following France in proposing them. He objects to using France as a model because in France, the family remains defined in the traditional configuration and the simple adoption promotes a "conservative view" of family.
Simple adoption "risks undermining the idea of adoption," he writes. "Since the first adoption law 90 years ago, adoption has created new bonds of filiation or legal parentage. It gives the child a new identity. … Quebec's current law views the children of interracial adoption and of adoption by same-sex couples as equal to any other children. It assumes that their adoptive families give such children a wholly valid identity."
The reality is, however, that while adoption law can give the child a new legal identity, it can't give the child - or their descendants - a new biological or genetic identity. This information is important to most people if they are to feel they have a wholly valid identity. As one person born from anonymous sperm donation once said, "it's the only bond you can't annul."
Moreover, for many adopted people, or those born through sperm or ova donation, simply obtaining information about their genetic identity isn't enough. Many want to have contact with their biological parents and, frequently, their wider biological family.
It's clear Prof. Leckey objects to Quebec's draft bill because it recognizes that genetic bonds matter in defining a family, and his main goal is to wipe out that notion. But is that a good idea?
To respond, we should ask first, what is likely best for adopted children, and only then, what adoptive parents might prefer in terms of the role that genetic ties play. In short, we should see the goal of adoption first as giving a child a family, and only second, as giving adults a child.
By focusing on the genetic tie, Prof. Leckey says, simple adoption implies that adoptive parents are "second best." Rather, I'd suggest it recognizes that adoptive parents are "different" from genetic parents. And it gives priority to children's rights with respect to their biological parentage - it actually remedies treating adopted children as "second best," in comparison with those who know their biological parents.
Prof. Leckey also objects to simple adoption because it "suggests that … filiation and family belonging are matters of blood." Well, for millennia they have been, although exceptions have always been needed - as in adoption. The issue is how much blood should count now.
The ethical requirement that we do the least harm possible when intervening with others, especially those unable to consent for themselves, indicates that the primary presumption should be that children have a right to know and be in contact with their biological parents, even when it's in their best interests not to be reared by those parents.
Prof. Leckey is concerned that simple adoption "shores up the importance of genetic connection over bonds of adoption." I'd suggest it recognizes that both genetic and adoptive bonds are important and rebalances the weight given to each, as it should be.
In choosing between, on one hand, treating adoptive and natural parents equally, and on the other, treating adopted and natural children as equally as possible, we should choose the latter. Making simple adoption available favours the latter.
Margaret Somerville is founding director of the Centre for Medicine, Ethics and Law at McGill University.Report Typo/Error