Raising Elaan: Profoundly disabled boy's 'co-mommas' make legal history
"It was one of the best days of my life," recalls Collins, 42.
She's sitting in her loft-style condo in Ottawa's ByWard Market neighbourhood. It resembles the sort of place a young, single professional might call home — hip furniture, striking art. Then you see the specialized chair built to accommodate a child with profound disabilities.
"I was lucky enough to be the first person to hold him," says Collins. "And it was a really surprising tidal wave of love, really, that hit me."
Collins describes her specialty as a member of the University of Ottawa's law faculty as "Erin Brockovich-type" environmental law.
Her best friend, neighbour and university colleague, Natasha Bakht, 44, teaches family and criminal law with research interests in religious freedom and women's equality.
Together, the two women have been raising Elaan in a non-romantic partnership that the court recently declared a legal parental arrangement, ending Collins and Bakht's two-year journey to get the same rights as more conventional couples.
An unconventional path
Bakht gave birth to Elaan in February 2010. Her path to motherhood was unconventional, but not uncommon.
When Bakht was in her mid-30s, she found herself single yet yearning for a child. So with the support of her family and friends, she decided on a sperm donor and conceived on her second try at the Ottawa Fertility Clinic.
Collins, who was also single and thinking she might like to one day have a child of her own, offered to be her friend's birth coach.
"I thought it would be just an amazing life experience to see someone be born," she says.
But when the day of Elaan's birth finally arrived, things didn't go according to plan. The baby was clearly in distress and there was a panic getting Bakht into the operating room in time for an emergency C-section.
A true knot
It would be months before Bakht and Collins would become aware of the impact that knot would have on Elaan's life, and theirs.
"I certainly left the hospital thinking we had a healthy child," Bakht says.
By about six months, little Elaan was showing clear signs of what the women now realize was "cerebral irritability."
He cried a lot, behaviour that was initially attributed to colic, and seemed unable to hold his head up as most babies his age do.
They also began noticing his small, repetitive eye movements. Collins's mother, a neurologist, quickly recognized them as seizures.
Crushing news
"He described it to us as being like a Swiss cheese brain. At that point, he said, 'You know, you're looking at very significant disabilities going forward,'" Collins recalls.
"I remember, as we left that neurologist appointment, Natasha said to me, 'What kind of life is he going to have?' And I said, 'He's going to have a wonderful life. We're going to make sure of that.'"
As her friend describes that day, tears roll down Bakht's cheeks. These are painful memories.
"Lynda is insistently positive," Bakht says through her tears. "I didn't expect to have a child with disabilities. It just changes what you think your path with respect to motherhood is going to be. I wouldn't change a thing, but I needed Lynda to remind me of that and she did, over and over again."
Facing the challenges
In his early years, he had difficulty eating and appeared to aspirate his food, causing pain and vomiting, and scaring everyone involved.
In 2012, Elaan had a gastric tube inserted into his stomach. He is now fed that way four times a day but continues to suffer chronic gastric reflux.
"Pretty much every day he'll throw up at least once," Collins says.
Elaan also has asthma and epilepsy, but with medication his seizures are kept largely under control.
He doesn't speak and is visually impaired, but his mothers say his cognition is quite good. While it's difficult to accurately test Elaan's comprehension, they believe he's learning at nearly the same rate as any seven-year-old.
At his school, the Ottawa Children's Treatment Centre, Elaan is taught in English and French. At home, Bakht, whose parents are from India, speaks to him in Urdu, as does the child's nanny.
"When we enumerate the disabilities … that might sound to some people very grim, but Elaan is one of the happiest people I've ever met," Collins says.
An epiphany
From the beginning, Collins accompanied Bakht and Elaan to most medical appointments. Eventually she sold her house and moved into the condo unit directly above Bakht's. (They call themselves "vertical neighbours.")
They began regularly eating meals together, and were soon sharing grocery-shopping duties. Together they looked after Elaan's health care, feeding, and bathroom and bedtime needs. The three travelled to Europe, India and New York City.
Collins had thought about having a child of her own, and had considered adoption. Then, while hiking one day in Gatineau Park, she had an epiphany.
"I suddenly had this feeling, why am I adopting a stranger when I have Elaan?" she says. "We were already living as a family."
But she wasn't sure how her friend would react to her offer to become Elaan's second mom. She brought it up gently one day, and says Bakht agreed right away.
"I did have a sense of the joy that would bring to have another parent involved," Bakht says.
She now had a partner with whom to share the vital decisions about Elaan's health and welfare, and knew that if anything ever happened to her, her son would always have a parent.
Collins would also take on significant new financial responsibilities once the partnership was made official and legal.
A unique case
"We are legal people," says Bakht. "We decided to formalize the relationship."
But since they were friends and not "conjugal" partners, Collins could not apply to legally adopt Elaan.
The two lawyers weighed mounting a Charter of Rights and Freedoms challenge to fight that premise, arguing discrimination based on family status, but decided the time and expense involved in such an undertaking would be prohibitive.
Instead, the women hired their friend, Ottawa lawyer Marta Siemiarczuk, to take a different approach. Together they made written submissions to try to convince the court to declare Collins a parent despite their unusual arrangement.
"Their situation was unique, from what I was able to see, in the case law history," says Siemiarczuk.
They collected affidavits from family members, the principal of Elaan's school and his pediatrician, Anne Rowan-Legg, at the Children's Hospital of Eastern Ontario.
"They are remarkable individuals and an even stronger team," wrote Rowan-Legg in her affidavit. "I have learned more from Natasha, Lynda and Elaan about humanity, loyalty and devotion than they will ever appreciate."
It worked.
By the end of November, the court was satisfied that it had jurisdiction and decided it was in the child's best interest to grant the declaration of parentage to Collins. A judge signed the order, and in January, Elaan's updated birth certificate arrived with both of his mothers' names on it.
Making legal history
"I'm not a single mom anymore. I have a partner in this journey and I'm so grateful for that," Bakht smiles. "This is my co-momma. Co-momma is how we refer to each other now."
The declaration means Collins can now make important decisions for Elaan when Bakht is out of town, or if she is ever incapacitated. Collins now holds the same rights as any other parent.
The declaration allows for either woman to bring others into the family if either meets a romantic partner. If their unique union ever collapses, Elaan's custody arrangements would be made through the court, as with the breakup of any other family.
As a family lawyer more accustomed to dealing with divorces and the disputes over property and support payments that can come with them, Siemiarczuk says working on this case has been a "truly amazing" experience.
"Every day I'm working in court and through negotiations with people arguing. In this case, Lynda has just embraced this financially, morally, socially, in every way, and Natasha has embraced Lynda, and they've all embraced Elaan."
As lawyers themselves, Bakht and Collins were keenly aware they were making legal history by setting this precedent, even if the law itself was about to change.
New year, new law
On Jan. 1, Ontario's All Families Are Equal Act came into force, so Ontarians who have used reproductive services such as sperm donation or surrogacy no longer have to apply to the court to be confirmed a parent.
But there's a catch: Co-parents need to have entered into a written agreement before conception.
Bakht and Collins didn't have such an agreement before Elaan was conceived, so the new law would have excluded them. Would-be co-parents who find themselves in a similar situation will have to challenge the constitutionality of Ontario's adoption law, a section of the Child and Family Services Act.
That could prove onerous and costly.
"I'm hopeful that there's more space in the new legislation than we think," Collins says. "I can't think the legislature meant to preclude a situation like this … a severely disabled little boy with another responsible adult willing to take financial, emotional responsibility for him, but no she can't because the two parents aren't in a sexual relationship. I mean it just makes no sense whatsoever."
A future together
Bakht and Collins plan to write a legal article about their victory, and tell future family lawyers about it at the university.
But at home, the co-mommas are looking toward their family's future, however daunting that may be.
"Of course, it's scary sometimes to think about his future and the medical difficulties," says Collins. "Last year, we were in the emergency room four times, all with potentially life-threatening conditions. That's scary."
Elaan is set to go to a new school next year, and together they've purchased another apartment in the building that will be Elaan's when he grows up and has attendant care.
Decisions like these have been so much easier for both women because they know they're in this together.
"It's a privilege to be his parent," says Collins. "I always wanted to be a parent and I'm really grateful for Natasha that she gave me that. She didn't have to do that… There is no condition on this."
