August, 2015 / Author:

216-22-what-about-the-one-whos-not-pregnantWithin a partner relationship, for each child there is a partner who doesn’t give birth. Whether this is the co-mother in a lesbian couple, the partner of a pregnant trans-masculine person, or someone else, being the one who doesn’t carry the child poses its own unique challenges. While there is a script for heterosexual fatherhood in our culture, we don’t have many cultural norms around queer parenting. From legal issues to emotional ones, there are a number of things to consider.

First, the legal issues: Since family law is governed provincially, the rules on same-sex relationships and child rearing are uneven across the country.

As court challenges slowly make their way through the system, things are lining up to put same-sex relationships on an equal footing with straight ones. In Manitoba, for example, parents will soon be allowed to put more than two names on a child’s birth certificate. This makes proving that your child is, indeed, your child, easier and it facilitates non-romantic co-parents including their names together on their child’s documentation.

Adoption is also governed provincially, and if a second parent wants or needs to do a “step-parent adoption,” say in the case of non-romantic partners, this is something to consider. Being officially named as a parent of your child is important legally. If the legal parent died, for example, a co-parent could be left without custody of their child.

Joanna Radbord is a Toronto lawyer who works on GLBT* law. In her paper, “GLBT Families and Assisted Reproduc- tive Technologies,” she points out that courts will make decisions about things like custody in light of the bonds of caregiving and love however, so don’t get too worried.

This is similar in the case of relationship breakdown between parents. In a custody claim where both partners are legal parents, they start off on an equal footing.

Since attention is often lavished on the pregnant partner, co-mothers or partners can feel they lack space to reflect on, or celebrate, their own journey into parenthood.

“Where only one party is the legal parent and the other a social parent, the court could still order custody or access in favour of either party,” Radbord writes. The court would consider the bond between the child and parent, as well as the person’s parenting ability, and the biological and legal factors.

In Toronto courts, at least, Radbord writes, there is a strong tendency toward joint custody and generous time to the non-biological parent in same-sex family disputes.

“These are still early days for seeing recorded decisions on the breakdown of queer families reflected in the case law,” writes Zara Suleman, a Vancouver family lawyer, in her survey on family law for queer and trans families. Most cases seen so far have been about custody and access to children, but she anticipates more cases about issues like child support will be forthcoming.

But before a child is even born, there are issues for a non-birthing parent to tackle. In “Celebrating the ‘Other’ Parent: Mental Health and Wellness of Expecting Lesbian, Bisexual, and Queer Non-Birth Parents,” Kira Abelsohn, Rachel Epstein and Lori Ross write about the unique stressors and role non-birth parents have in the parenting process.

From thoughts like, “Am I even a real parent?” to worrying a child won’t feel connected to them, non-birth parents potentially deal with a unique set of fears and insecurities.

Since attention is often lavished on the pregnant partner, co-mothers or partners can feel they lack space to reflect on, or celebrate, their own journey into parenthood. Some non-birth parents also worry about how their communities will receive them as parents. Confronting heterosexist stereotypes, and perhaps feeling expected to take on a “father” role or other gendered role that doesn’t fit, non-birthing partners may face the struggle of pushing back against heter- onormative stereotypes. Trans-masculine birth-givers and other partners can of course face this intensely as well.

For some couples who’ve used known donors, laws have dictated the donor is written on their child’s birth certificate—leaving the actual co-parent legally unrecognized. This has an emotional impact. Legal barriers to the full transi- tion into parenthood harm non-birthing parents, and can leave them feeling insecure or guilty about their status as parents. It’s imperative that laws catch up with same-sex families so this harm can be prevented and non-birthing partners can feel safe.

Other issues can come up—in a situation where one partner is infertile and the other carries the child, for example, envy or deep sadness can surface.

In the end, the issue is one of a non-biological parent making sense of their own role in bringing a child into the world and reckoning with their journey of becoming a parent. Since there aren’t a lot of queer guides for this, non-birth parents create what works for them and their families.

And this is the same thing queer families have been doing with children since before there were laws that even covered same-sex relationships.


–Larkin Schmiedl is a freelance writer living and working in Vancouver, B.C. He loves to write about social and environmental justice, especially when it comes to other trans-people.

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