Tomasson v Attorney General of Canada: Reproduction and its Discontents
Today, the Supreme Court of Canada (“SCC”) will render its judgment in the application for leave to appeal from Tomasson v Canada (Attorney General), 2007 FCA 265. At issue is whether the provisions of the Employment Insurance Act, SC 1996, c 23, which grant certain maternity benefits only to biological mothers, discriminate against adoptive mothers within the meaning of s. 15 of the Charter. Though this post was written prior to the SCC’s rendering of its leave decision, and I refuse to risk looking foolish by predicting the outcome, I will say that the SCC has a unique opportunity to weigh in on the important, and timely, issue of the status of adoptive and alternative parents in Canada. The Federal Court of Appeal’s characterization of the Ms. Tomasson’s Charter argument is, in my view, too simplistic for the SCC to ignore by denying leave.
The relevant parts of the impugned provision state that:
12.(1) If a benefit period has been established for a claimant, benefits may be paid to the claimant for each week of unemployment that falls in the benefit period, subject to the maximums established by this section.
(3) The maximum number of weeks for which benefits may be paid in a benefit period
a) because of pregnancy is 15;
b) because the claimant is caring for one or more new-born children of the claimant or one or more children placed with the claimant for the purpose of adoption is 35.
This differentiation indicates that biological mothers are entitled to a total of 50 weeks of paid leave; that is, 15 weeks as a result of the pregnancy and 35 weeks for the care of the newborn child. The adoptive mother, conversely, is only entitled to 35 weeks for the purpose of child care. As such, Ms. Tomasson, an adoptive mother, challenges the constitutionality of these provisions under s. 15(1) of the Charter on the ground that they treat biological and adoptive mothers differently.
One element of the issue that I find particularly compelling is that of the purpose and effect of the legislation. This inquiry is the third, and often most contentious, leg of the Law test (which is the SCC’s framework for assessing s. 15(1) arguments, as set out in Law v Canada (Minister of Employment and Immigration),  1 SCR 497). The object of this part of the test is to determine whether the differential treatment which results from the provision at issue has a purpose or effect that is discriminatory within the meaning of the equality guarantee.
The FCA Decision
At the Federal Court, Ms. Tomasson argued that the purpose and effect of the maternity benefits is to give biological mothers more time for bonding and childcare than is afforded to adoptive mothers, and this differentiation is therefore discriminatory to adoptive mothers. Adopted infants and birth infants, she argued, require the same amount of time in order to form attachments, and the legislated denial of maternity benefits to adoptive mothers lessens the time available in the first year of a child’s life to attach to his or her adoptive mother. Ms. Tomasson also relied on a doctor’s expert evidence to augment her submissions on the bonding and attachment process, and the doctor confirmed that the twelve month time frame is not generally different for adopted children, as long as they are adopted early in infancy.
In response to Ms. Tomasson’s submissions on this issue, the Federal Court held that the question to be asked within this leg of the test is whether a reasonable person would conclude that the provisions, either in purpose or effect, demean the applicant’s human dignity. The Federal Court of Appeal (“FCA”) found that the purpose of the impugned provisions of the Act was to replace the income of insured pregnant women and biological mothers while they undergo the stress of giving and recovering from birth. This perspective indicates that the provisions were not implemented to encourage bonding or attachment, but to deal with the circumstances of employment. Essentially, the FCA stated that the purpose of the Act’s provisions is to accommodate the physiological toll that childbirth takes on biological mothers; because they give birth, their time away from work is most likely more substantial than that of adoptive mothers.
Characterizing the legislative purpose in this regard colours the remainder of the FCA’s reasoning, and understandably so. If the focus of the legislation is on the physical act of childbirth, then it only makes sense that women who give birth require a longer recovery time than adoptive mothers. The Federal Court, however, took this reasoning a step further in its conclusion, and stated that exact parity between biological and adoptive mothers would actually result in discrimination against biological mothers.
The distinction in the legislation favouring pregnant women, the FCA reasoned, is legitimate because it seeks to accommodate their needs in the workforce as a disadvantaged group. If adoptive mothers were to be entitled to maternity benefits, “this would implicitly constitute a finding that birth mothers deserve no more time off from work than adoptive mothers, even if they must go through the burden of pregnancy and childbirth.” The FCA concluded with the oft-utilized floodgates argument, stating that “if maternity benefits are made available to adoptive mothers, [the court] see[s] no reason why adoptive fathers or, for that matter, biological fathers, should not be entitled to claim those benefits as well.”
Putting aside these nuggets of misogyny (the burden of pregnancy?), I take issue with the Federal Court’s decision, and I hope that the SCC recognizes similar areas of contention. My biggest complaint with this ruling is that the purpose of the legislation was viewed from only one perspective, which tainted the rest of the FCA’s findings. The physical act of childbirth is no doubt an ordeal, and would certainly require time to recuperate, hence the additional 15 weeks of compensation for biological mothers.
However, another s. 15(1) consideration is discrimination on the basis of immutability; if you are treated differently due to characteristics that you cannot change, this is arguably discriminatory and contrary to the Charter. While some women choose to adopt their children, others do so because they are incapable of conceiving and/or carrying a child. This is an immutable physical characteristic, and it has been accommodated through such avenues as in-vitro fertilization, surrogate motherhood, and adoption, among others. By bestowing extra compensation upon biological mothers, the impugned legislation impliedly discriminates against the physical characteristics of a wide expanse of modern mothers who have exercised other child-rearing options due to fertility problems.
This is just one argument that could be raised to contend against the stark division characterized by the Federal Court. Additional situations come to mind that not only raise the physical argument, but could also touch other analogous and enumerated s. 15(1) grounds. For instance, a male same-sex couple that must adopt due to biological realities could argue discrimination based not only on these physical characteristics, but on sexual orientation as well. Though the same-sex issue does not arise here, it is a potential future issue.
For now, it is at least possible to argue that by denying adoptive mothers equal compensation, such legislation also denies benefits to mothers who give birth via surrogate, let alone those mothers (and parents) who may benefit from different and as-yet unimagined reproductive treatments in the near future. By framing the issue as a simple biological/non-biological one, the FCA has ignored possible discrimination arguments on the basis of immutable physical characteristics, while other potential complaints hover on the horizon. I do not think the issue is as clean cut as the Federal Court has indicated in Ms. Tomasson’s appeal; today, I hope that the SCC realizes this as well.