Law Reform, Lesbian Parenting, and the Reflective Claim
| Date | 01 September 2011 |
| Published date | 01 September 2011 |
| DOI | 10.1177/0964663911406000 |
| Author | Robert Leckey |
| Subject Matter | Articles |
Article
Law Reform, Lesbian
Parenting, and the
Reflective Claim
Robert Leckey
McGill University, Canada
Abstract
The article aims to complicate efforts to make law fit or catch up to social practices. It
scrutinizes the ‘reflective claim’ using the case study of recognition of parenting by
lesbian couples. Reforms in the United Kingdom’s Human Embryology and Fertilisation
Act 2008 and the Canadian province of Quebec’s civil code are compared with
empirical work from the social sciences on lesbians’ family practices. The reflective
claim rests on problematic ideas about social practices and law. Since law is always
blunt and incomplete, choices must be made as to which practices it should aim to
recognize. Furthermore, the impact of heterosexist and homophobic conditions on
lesbian families means that observable practices may not be a suitable model for gay-
affirmative reforms. As advanced in the literature, the reflective claim overlooks law and
society’s complex interaction, including how reform will not merely reflect but also alter
practices. It fails to do justice to law reform’s normative character, obscuring its costs and
positive potential.
Keywords
empirical research, Human Fertilisation and Embryology Act 2008, law reform, lesbian
mothers, Quebec civil law
This article’s argument concerns the complex relationship between empirical evidence
of social practices and well-intentioned law reform. It is a reminder that reform will not
merely reflect social practices, but also intervene in them, in unpredictable ways. Law
reform cannot respond to all practices in a given area, and so requires choices that are
Corresponding author:
Robert Leckey, 3644 Peel Street, Montreal, Canada H3A 1W9
Email: robert.leckey@mcgill.ca
Social & Legal Studies
20(3) 331–348
ªThe Author(s) 2011
Reprints and permission:
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DOI: 10.1177/0964663911406000
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unavoidably normative and distributive. While the examples vary significantly, the
argument might be made using practices currently partly or wholly ‘outside’ the law such
as polygamy, prostitution, or use of prohibited narcotics. It might be made using com-
mercial practices that secure an obligation, functionally, while evading regulation aimed
at charges constituted formally on a borrower’s property. This article’s case study is the
push for legal recognition of parenting by lesbian couples.
The article begins by distinguishing claims for recognizing lesbian parenting based
on equality from the reflective claim, the idea that law should adapt to existing social
practices. Scrutiny of the reflective claim proceeds in the light of reforms in the United
Kingdom (2008) and in the Canadian province of Quebec (2002). The article contrasts
two features of those regimes – the status accorded to the non-birth parent, on which they
differ, and the two-parent maximum, on which they agree – with social-science accounts
of lesbian parenting. The empirical literature shows some support for the design choices
of both regimes, but gestures to difficulties with the reflective claim. The reflective claim
rests on erroneous assumptions about social practices and about law. It also overlooks the
complex interaction of law and society. As often cast, the reflective claim fails to do
justice to the normative character of law reform, obscuring the latter’s positive potential
and its costs.
A gay-affirmative or anti-homophobic stance is adopted. While some objections to
amending family law for gays and lesbians may be irreducible to bigotry or disgust
(Case, 2010), the article does not address such objections. The operating assumption
is that scrutiny of the reflective claim condemns neither the turn to social practice nor
particular reform projects. Glaring injustice persists where it remains impossible to
establish legal bonds between children and those parenting them. Advocates in court
or parliamentary hearings might, understandably, adopt for strategic reasons a simple,
powerful message such as equality or reflection. But legal scholars’ role is distinct from
the advocate’s (Leckey, 2009a). The complexity of law reform, including its uncertainty
and the costs it imposes on those members of sexual minorities whose families are least
like the mainstream, merits fuller discussion than has transpired. So does the possibility
that not all observable family practices should inspire legislative drafters.
Two Arguments for Lesbian Parents
Constellations of family life involving same-sex couples are increasingly obtaining legal
status. The matter of a civil status for adult couples has generated the most literature, but
the relations between adults and children are also significant. Where conception and
birth are concerned, as opposed to adoption, reforms focus on lesbian couples who use
assisted conception more often than on surrogacy arrangements for gay male couples.
With modifications, the arguments framed in relation to marriage also circulate in the
parenting context. Two forms of argument are distinguishable.
Especially where a bill of rights applies, the call for reform is often cast in abstract
terms of equality. The starting point is the equal worth of different forms of family.
Equality, goes the argument, requires that both lesbian partners enjoy parental status just
as do different-sex parents because they are relevantly similar (e.g. Rutherford v
Ontario). The impetus for reform comes from the horizontal gap between the differential
332 Social & Legal Studies 20(3)
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