By BRENDA COSSMAN
Professor of law at the University of Toronto
Monday, August 20, 2007
– Page A13
The Federal Court of Appeal has created a new
creature. She's called the "reasonable adoptive mother."
Apparently, this creature shouldn't be demeaned in any
way by the fact biological mothers get almost four
months more employment leave from work than adoptive
According to the court, the "reasonable adoptive
mother" would recognize that the physiological and
psychological experience resulting from pregnancy and
childbirth make biological mothers more deserving of
time with their new babies than adoptive mothers. She
would know that the Canadian government has considered
her needs, and given her some time off work so that she
has "in no way been excluded from Canadian society." In
its words, "the reasonable adoptive mother would not
feel demeaned by the granting of the maternity benefits
to biological mothers."
This "reasonable adoptive mother" is used by the
court against the actual adoptive mother who challenged
the employment insurance scheme that gives biological
mothers 15 weeks more paid leave than adoptive mothers.
Patti Tomasson challenged the Employment Insurance Act
as violating her equality rights under Section 15 of the
Charter of Rights. The court, however, concluded that
there is nothing discriminatory about the provisions,
since they simply recognized the unique experience of
There are arguments for and against the distinction
between adoptive and biological mothers.
The main argument in favour is that women who give
birth need time to recover from pregnancy and
childbirth. This is obviously true. But it's not the end
of the story.
The argument against the distinction is that for many
biological mothers, some of the extra four months is
time spent on infant care and
Adoptive mothers are not given this opportunity,
despite the fact that time is what they really need.
Why? Because adoptive parents also have to worry
about bonding and attachment. Biological parents don't.
Well, sure, they worry about it. But, the baby has been
put into their arms at birth, and given their time off
work, bonding and attachment will generally develop
This simply is not the case with adoptive children.
Many are not placed at birth. Many are several months
old, or a year old, or two years old or older. Experts
recognize that the attachment process is often
challenging for adopted children, and emphasize that the
older the child, the more precarious the attachment.
They also emphasize that these attachment problems can
be serious, creating a range of developmental and
psychological problems well into adolescence.
So, sure adoptive mothers want to spend time caring
for their child. But what is unique about their claim
are the special challenges of attachment. Just like what
is unique about biological mothers is pregnancy and
Giving adoptive parents as much time to spend bonding
with their children shouldn't demean the uniqueness of
pregnancy and childbirth. We shouldn't be pitting moms
against moms. These are different routes to parenthood.
Both are unique. Both deserve time spent with their new
Biological mothers face lots of challenges. But so do
adoptive mothers - and fathers. In addition to bonding
and attachment, adoptive parents face a series of
obstacles and challenges, including an ongoing societal
attitude that sees adoption as just not quite as good,
and adoptive families as just not quite as real.
Given all of this, there is absolutely nothing
unreasonable about Patti Tomasson arguing that she
should have as much paid leave with her adopted children
as a biological mother gets with hers. It is totally
reasonable that she ask the government to recognize her
own unique route to parenthood, and its attendant
And at a minimum, the court doesn't need to slap
adoptive parents in the face by saying that feelings of
discrimination make them unreasonable.
It's just adding insult to