Does each of us have a right to know, where possible, through whom life traveled down the generations to us? Do other individuals and society have obligations not intentionally to make it impossible for us to know that? Do adopted children have a right to keep their 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 by a recent opinion piece in The Globe and Mail by my colleague Robert Leckey.

Defining “the family”

First, the illustration accompanying Professor Leckey’s article merits noting. It shows two adults and a child, each emblazoned with a heart symbol. This visually sums up the approach to defining a family adopted by Professor Leckey. This view holds that children’s only essential need in terms of 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 adoptive opposite-sex couple unrelated to the child, a same-sex couple (“genderless parenting”), a single person, or some other family structure 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 what children’s rights are in regard to their family? Should what constitutes a family be simply, as Professor Leckey advocates, a matter of adults’ personal preferences with biological bonds having no necessary role to play?

The impact of legalizing same-sex marriage is relevant in this regard. The Civil Marriage Act redefined parenthood from biological or natural parenthood to legal (and social) parenthood, that is, 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 to institute the pacte civil (civil unions), expressly because same-sex marriage would give priority to adults’ rights to create “diverse” families, as Professor Leckey terms them, and the government decided that this was not in children’s “best interests”. Civil unions do not have this effect, because they carry no right to found a family.

Forming families through adoption

The draft bill tabled last week in Québec deals with both open and simple adoptions.

“Open adoptions” – adopted children know who their biological parents are – are now the norm in countries like Canada.

“Simple adoptions” are a more novel idea. They would give a child a new adoptive parent or parents, who would assume the primary responsibility for caring for the child. But they would also preserve the legal bond connecting the child to his or her birth parents and birth family.

Professor Leckey describes “simple adoptions” as a “troubling proposal” and criticizes Québec 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” approach 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.... Québec'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 a new biological or genetic identity, and, at the very least, knowing what the latter is, 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, “Knowing who your genetic parents and relatives are is so important because 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 seems, often, not to be enough. Many want to have contact with their biological parents and, frequently, their wider biological family. As well, the children of people who don’t know their genetic identity suffer the same loss.

It’s clear Professor Leckey objects to the 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 to be best for adopted children, in general, 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.

Professor Leckey is mainly concerned for parents. He claims that “by focusing on the genetic tie, the call to recognize simple adoption undermines the established legitimacy of adoption as a source of new, fully equal family ties. It implies that adoptive parents are second best.”

I’d suggest, rather, that it recognizes the fact that adoptive parents are different – not “second best” – from genetic parents, in not being genetically related to the child. And it gives priority to children’s rights with respect to their biological parentage, over adults’ wishes in this regard. In short, it remedies treating adopted children as “second best” in comparison with those who know their biological parents.

Professor Leckey also objects to simple adoption because it “suggests that ... filiation and family belonging are matters of blood.” Well for millennia they have been primarily “matters of blood,” although exceptions have always been needed – as in adoption. The issue is how much should “blood” count now?

The ethical requirement that we do the least harm possible when intervening on others, especially those unable to consent for themselves, indicates that the primary presumption – to which there are exceptions in the “best interests” of the child – 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.

Professor Leckey is concerned that “calling for simple adoption shores up the importance of genetic connection over bonds of adoption.” I’d suggest that it recognizes that both genetic and adoptive bonds are important, helps to overcome the denial of the importance of genetic bonds, and rebalances the weight given to each – and that’s as it should be.

In short, in choosing between, on the one hand, whether adoptive and natural parents should be treated equally, and on the other, whether adopted and natural children should be treated as equally as possible, we should choose the latter. Making available the option of “simple adoption” favours the latter.