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Canadian Journal of Family Law

Authors

Lori Chambers

First Page

339

Document Type

Article

Abstract

Overwhelmingly, Canadian-born children relinquished for newborn adoption have been born to unmarried mothers. Under provincial adoption acts, in cases of "illegitimacy" only the mother's consent was necessary for a child to be eligible for adoption. Since adoption statutes were introduced, however, the distinctions between those born within and outside of marriage have been eliminated at law. Provincial legislation now recognizes a wide range of unmarried men as fathers, lists circumstances under which paternity will be presumed and provides for the use of genetic testing. But this raises significant questions in the context of newborn adoption. Whose consent is required to relinquish a child? In this paper it is argued that the unfettered right to release a newborn child for third party adoption is an essential component of women's reproductive autonomy. It is also essential to women's dignity and equality rights, and to the right to liberty and security of the person. To illustrate this argument, consent provisions are contextualized by explicating the disrespect for unmarried birth mothers that has been central to adoption regimes. This is contrasted with the expanding rights of non-marital fathers under Charter litigation. With regard to newborn adoption, Charter reasoning has delivered equality with a vengeance. Relinquishment should be considered an issue of reproductive freedom, not a question of custody. Interference in the birth mother's decision-making process violates her section 15 right to equality; the on-going poverty and discrimination faced by single mothers are erased when the genetic claims of men are considered to give them equal standing with mothers in adoption cases. Moreover, women's section 7 rights to liberty and security of the person are vitiated when men can interfere with adoption placement, forcing women to abort or to retain custody themselves.

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