A judge in Alberta who presided over a messy custody battle involving two gay men and two lesbians has pointed out a major weakness in family law legislation affecting gay fathers.
"Clearly there's a gap here and the judge pointed it out a couple of times," said the gay man known in the case as Mr H, following his legal victory. Earlier this month, Mr H was awarded access to his six-year-old daughter after a three-year tug-of-war that he described as "Brokeback Mountain meets Erin Brockovich." Next week, he will finally get to see his child again for the first time in almost two years.
(Nobody involved in the case is allowed to be named because of a publication ban put in place to protect the identity of the little girl.)
The sad, complicated and obscenely expensive case of Baby S is a cautionary tale for any gay parent who is contemplating having a child through surrogacy or artificial insemination.
It all started in 2002, when a gay couple in Calgary, Mr H and Mr R, decided to have a child with a lesbian couple, Ms D and Ms C S. Mr R's sperm was injected into Ms D, and in May 2003, Ms D gave birth to a baby girl named S.
The two men and the surrogate mother agreed that Mr H and Mr R would raise the child. Or so they thought.
In her decision earlier this month, Madam Justice Kristine Eidsvik wrote, "It is apparent that the three parties involved in the decision involving Baby S's life were not completely in concert with one another."
The key problem? "The details of this arrangement were never formalized in a written agreement between all the parties," the judge said. Mr R and Ms D were listed as S's parents on her birth certificate, and Mr H never applied to adopt her.
In Jun 2006, Mr H and Mr R split up. Soon after, Mr R and Ms D went to a lawyer and signed a parenting agreement that cut Mr H out of his daughter's life. Mr H fought back in court and won access to Baby S, but in Nov 2007, a psychologist denied his rights as a father.
Madam Justice Eidsvik overturned the psychologist's decision earlier this month and declared that both men are Baby S's parents. Starting next week, Mr H will get access to his daughter again. "I feel vindicated," said Mr H. "It would have been a travesty of justice had it not gone this way."
The legal battle, which he described as "David vs Goliath," was extremely costly for both sides. Mr H hired four different lawyers to win his case and he said Mr R hired 12 lawyers. It is estimated that the fight over Baby S cost the men well over half a million dollars in legal fees. Madam Justice Eidsvik's 28-page ruling reads like a queer Harlequin romance gone horribly wrong.
Nevertheless, Mr H called his victory "an important piece of groundwork that will lead to equality rights in family law." That's because the judge pointed out a major double standard in the way the law treats gay fathers and straight fathers.
Madam Justice Eidsvik ruled that, even though Mr R was registered as Baby S's biological father under the Vital Statistics Act, the law never recognized him as anything more than a sperm donor since he didn't have a common-law or sexual relationship with the child's mother, Ms D.
"There is a gap in the legislation," wrote Madam Justice Eidsvik, which Mr H hopes will be fixed soon.
In the meantime, he is thrilled to be seeing his daughter again next week, even though he knows she probably won't greet him with open arms. "I'm prepared for her to be mad at me," he said.
Mr. H said he has learned many valuable lessons since he first started negotiating his daughter's conception. "Be clear. Seek counselling. Don't listen to your heart," he said. "Get things in writing even if you're living with somebody because you don't know how things will go."