Don't pit adoptive moms against biological moms

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 mothers.

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 pregnancy.

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 normally.

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 childbirth.

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 children.

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 challenges.

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