McCandless, Julie 2013. Cinderella and her cruel sisters: parenthood, welfare and gender in the Human Fertilisation and Embryology Act 2008. New Genetics and Society, Vol. 32, Issue. 2, p. 135.
There are few other areas in family law where incongruence between the legal and social positions is as evident as that concerning parenthood. Recent cases involving lesbian couples and known sperm donors serve to highlight the increasing tension between the respective roles of biology, intention and functional parenting in the attribution of legal parental status. As both legislative and case-law developments have shown, intention is central in some circumstances, but not in others. The main claim of this paper is that this ad hoc approach leads to incoherent and unsatisfactory law: instead of striving to identify a status, what we are really looking to do is to identify the people who assume responsibility for a child. Drawing upon recent case-law, this paper explores how a conceptual reform of the law could result in a principled framework which would place formally recognised intention at the heart of parental status in order to reconnect legal duty with social reality for as many children and parents as possible. Moreover, it would ensure that parental status would not be dictated by the mode of conception of the child (natural or assisted). The analysis identifies the objectives of reform before proposing a new model which, while recognising the social importance of the biological parentage link, would reserve legal status for functional parenthood.
1. For example, the recognition of legal father for someone either who consented to his wife's artificial insemination by donor, or who underwent ‘treatment together’ with his female partner under the Human Fertilisation & Embryology Act 1990 (hereafter HFE Act). This latter was then replaced by the ‘intended fatherhood provisions’ which merely require unmarried parties to agree that a named man will be the father: HFE Act 2008, s 36; the introduction of parental orders under HFE Act 1990, s 30 which first recognised commissioning parents in a surrogacy arrangement, but only for married couples. This was amended in HFE Act 2008, s 54 to include civil partners and those ‘in an enduring family relationship’; most recently, the recognition of the ‘intended female parent’ who is assimilated to a legal ‘father’ for the purposes of other legislation: HFE Act 2008, s 42.
2. The term ‘assisted reproduction’ refers to medical assistance under the HFE Acts 1990 and 2008, whereas ‘artificial reproduction’ refers to self-arranged (sperm) donor insemination.
3. England and Wales is chosen as the focus for this analysis due to some differences in relevant Children Act legislation in Scotland and Northern Ireland (although the HFE Acts 1990 and 2008 apply throughout the UK).
4. With reforms for other intimate relationships being based upon an assimilation to this model in what McCandless and Sheldon have described as the ‘tenacious hold of the sexual family’: McCandless, J and Sheldon, S ‘the Hfe Act (2008) and the tenacity of the sexual family form’ (2010) 73 MLR 175 .
5. See for example Douglas, G and Lowe, N ‘Becoming a parent in English law’ in Eekelaar, J and Sarcevic, P (eds) Parenthood in Modern Society Legal and Social Issues (Dordrecht: Martinus Nijhoff, 1993) p 145.
6. Douglas, G. ‘the intention to be a parent and the making of mothers’ (1994) 57 MLR 636 .
7. See for example Arden LJ in Evans v Amicus Healthcare Ltd and others EWCA (Civ) 727, para 97.
8. Dewar, J. ‘the normal chaos of family law’ (1998) 61 MLR 467 .
9. For a multi-disciplinary approach, see Bainham, A, Day Sclater, S and Richards, M (eds) What is a Parent? A Socio-Legal Analysis (Oxford: Hart, 1999).
10. Alta Chao, R ‘and baby makes three – or four – or five – or six: redefining the family after the reproductive revolution (19921993) 7 Wisconsin Women's Law Journal 1 at 1.
11. Bartlett, K ‘Re-expressing parenthood’ (1989) 98 Yale LJ 293 at 297.
12. Smith, L ‘Is three a crowd? Lesbian mothers' perspectives on parental status in law’ (2006) CFLQ 231 .
13. Baker, K ‘Bargaining or biology? the history and future of paternity law and parental status’ (2004) 14 Cornell JL % Pub Pol'y 1 at 5.
14. Leckey, R ‘Where the parents are of the same sex: Quebec's reforms to filiation’ (2009) 23 IJLPF 62 . Consistency in ideological norms is also relevant, but beyond the scope of this paper.
15. The introduction to the Children Act 1989 clearly reveals this: ‘. . . children are generally best looked after within the family with both parents playing a full part and without resort to legal proceedings.’Introduction to the Children Act 1989 HMSO 1989 para 1.3 (emphasis added).
16. The Adoption & Children Act 2002 recognised adoption by two same-sex parents; more recently, the HFE Act 2008 also recognises the mother and the other intended female parent.
17. HFE Act 2008, s 33(1) (and for children born before April 2009, the HFE Act 1990, s 27). This enshrines the common law rule as stated in The Ampthill Peerage case AC 547.
18. Sections 41 and 47 deny the sperm and egg donor's respective parenthood.
19. For a civil partner accessing licensed treatment, s 42 HFE Act 2008 provides she will be deemed to be a parent of the child unless it is shown she has not consented. This provision mirrors that for married couples. Section 44 provides for the female partner of the mother to adopt the ‘agreed female parenthood conditions’ which assimilates female partners to heterosexual male partners. For an analysis of these UK provisions (and a comparison with the Australian position) see Zanghellini, A ‘Lesbian and gay parents and reproductive technologies: the 2008 Australian and Uk Reforms’ (2010) 18 Feminist Legal Studies 227 .
20. McCandless and Sheldon, above n 4. Where not in a civil partnership at the time of insemination, the civil partner may subsequently acquire parental responsibility as a step-parent under s 4A Children Act 1989.
21. Section 12(2) Children Act 1989. Alternatively, she could apply for an adoption order (with the legal father's consent).
22. This Act amended the Child Support Act 1991 which provides for a non-resident parent to make a financial contribution to the upbringing of the child. It only applies to ‘parents’ as defined in law based upon the predominance of the genetic link.
23. Where it would be impossible, impractical or unreasonable to do so. Note, however, that these provisions are not yet in force. For a critique see Sheldon, S ‘from absent objects of blame…’ (2009) Journal of Social Welfare and Family Law 373 .
24. Re D (contact and parental responsibility: lesbian mothers and known fathers) 1 FCR 556; Re B (role of biological father) EWHC 1952 (Fam); R v E & F (female parents: known father) EWHC 417 (Fam). Most recently, the interim ruling in ML, AR v RWB,SWB EWHC 2455 (Fam).
25. R v E & F (female parents: known father) EWHC 417 (Fam).
26. I am grateful to one of the reviewers for highlighting this.
27. The Adoption and Children Act 2002 amended this position: since December 2003 fathers who are named on the birth certificate acquire parental responsibility irrespective of their marital status with the mother. As mentioned above, the Welfare Reform Act 2009 (once in force) will require a father to be named on the birth certificate in most cases.
28. Under s 4A(1)(a) Children Act 1989.
29. The couple were married in the USA.
30. Under s 11(4) Children Act 1989.
31. R v E & F, above n 26, para 48.
32. The fact that there may exist malicious parents who seek to abuse their PR is not a reason to deny that PR be attributed. It does mean that the court is able to limit the use of PR where the child's interests so demand.
33. This is at the heart of the Children Act 1989 which allows for PR to be granted to a number of significant adults. See Diduck, A ‘If only we can find the appropriate terms to use the issue will be solved: law, identity and parenthood’ (2007) 19 CFLQ 458 .
34. As are the majority of lesbian couples who deliberately seek a known donor: Smith, above n 12.
35. For a critical analysis on this point, see Zanghellini, A ‘Who is entitled to parental responsibility? Biology, care-giving, intention and the Family Law Act 1975 (Cth): a jurisprudential feminist analysis’ (2009) 35 (1) Mon LR 147 , especially at 158.
36. D Roberts ‘The genetic tie’ (1995) 62 U Chi L Rev 209.
37. Section 4A(3)(a) CA 1989 provides for the mother to apply for the court to withdraw PR.
38. On the question of child support and non-biological co-parents see T v B EWHC 1444 (Fam).
39. DNA tests would of course be another source of information, but even if requested, would not necessarily lead to any identification of an interested third party.
40. Births and Deaths Registration Act 1953 s 34(2).
41. Reform was proposed at the beginning of the new millennium, but has failed to see the light of day: Civil Registration: Vital Change CM5355 (ONS, Great Britain).
42. Bainham, A ‘What is the point of birth registration?’ (2008) CFLQ 449 .
43. However, there is scope for deception, both through the fictions in the HFE Act 2008 and the deliberate deception by individuals as to the biological father: V Sterling ‘DNA, paternity deceit and reliability of the birth certificate as a historical document’ Fam Law 701.
44. Wallbank, J, ‘Bodies in the shadows: joint birth registration, parental responsibility and social class’ (2009) CFLQ 1 .
45. Lebbink v The Netherlands 2 FLR 463; Schneider v Germany (Application no 17080/07) ECtHR, 15 September 2011.
46. ‘To be a “just” society, we must treat “all” families with respect and concern at the same time that we realise that the traditional family is not a panacea for the problems society faces’: Fineman, M The Neutered Mother, the Sexual Family (London: Routledge, 1995) p 236.
47. Eekelaar, J Family Law and Personal Life (Oxford: Oxford University Press, 2006); Haimes, E ‘Secrecy: what can artificial reproduction learn from adoption?’ (1988) 2 IJLPF 46 .
48. Maclean, S and Maclean, M ‘Keeping secrets in assisted reproduction – the tension between donor anonymity and the need of the child for information’ 1996 CFLQ 243 ; Roberts, M ‘Children by donation: do they have a right to claim their genetic parentâge?’ in Bridgeman, J and Monk, D Feminist Perspectives on Child Law (London: Cavendish, 2000) p 47. See also McWhinnie, AM ‘The case for greater openness in AID’ in AID and After (London: BAAF, 1984); and ‘Gamete donation and anonymity – should offspring from donated gametes continue to be denied knowledge of their origins and antecedents?’ 2001 16 Human Reproduction 807.
49. Building upon Freud's analysis, see Vacquin, M Main basse sur les vivants (Paris: Fayard, 1999). Others refer to a ‘genealogical bewilderment’ felt by those who have been adopted or conceived using anonymously donated gametes: Van Beuren, G International Law on the Rights of the Child (The Hague: Kleuwer Law International, 1998).
50. The problem with such studies is that the sample is too often self-selecting insofar as the respondents are contacted through networks of donor offspring who are seeking information. Nevertheless, the need – or curiosity –for information exists, at least for some: Jadva, V et al ‘Experiences of offspring searching for and contacting their donor siblings and donor’ (2010) 20(4) Reproductive Medicine Online 523 ; Mahlsteot, P et al ‘the views of adult offspring of sperm donation…’ (2010) 93(7) Fertility & Sterility 2236 .
51. Jaggi v Switzerland (2006) App No 58757/00 13 July 2006, para 38.
52. On the notion and content of ‘identity’ see Jones, C ‘The identification of “parents” and “siblings”: new possibilities under the reformed HFE Act’ in Wallbank, J, Choudhry, S and Herring, J (eds) Rights, Gender and Family Law (London: Routledge, 2010).
53. For a critical analysis of the use of the right to know, see Fortin, J ‘Children's right to know their origins – too far, too fast?’ 2009 CFLQ 336 ; Wallbank, J ‘the role of rights and utility in instituting a child's right to know her genetic history’ 2004 Social and Legal Studies 245 .
54. Disclosure of Donor Information regulations 2004, SI 2004/1511, available at http://www.opsi.gov.uk/SI/si2004/20041511.htm. Subsequent amendments to the 1990 Act were introduced by the HFE Act 2008, inserting s 31ZA–ZG into the HFE Act 1990 on the disclosure of information.
55. It is possible to argue that the right to know should only extend to the right to know the circumstances surrounding one's conception, but exploration of this is beyond the scope of this paper.
56. Department of Health Donor Insemination Consultation: Providing Information about Gametes and Embryo Donors (London: HMSO, 2001) refers to a European study which has shown that only 12% of mothers have the intention to reveal to the child the mode of conception, available at http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4018774.pdf.
57. Report of the Commission of Enquiry into Human Fertilisation & Embryology chaired by M Warnock, Cmnd 9314 (London: HMSO, 1984).
58. See the proposals by the Joint Committee on the draft bill, Joint Committee on the Human Tissue and Embryos (Draft) Bill, 1 August 2007, HL 169-1 HC 630-I 2006-07, and academic commentary outlining possible solutions: Blyth, E and Frith, L ‘Donor-conceived people's access to genetic and biographical history: an analysis of provisions in different jurisdictions permitting disclosure of donor identity’ (2009) 23 IJLPF 174 .
59. For those born under the anonymous donation scheme, it will be impossible; for those born afterwards there will still be a large proportion who will not be informed that they were born after recourse to donated gametes.
60. Above n 11.
61. See Re A and H (children)  EWCA Civ 383. This is also the stance taken by the ECtHR, see for example Shofman v Russia Aff 74826/01.
62. In this context, the observation by Fineman above n 46, that traditional categories can only be stretched so far before they lose their credibility is particularly apt: this is surely the position with extending the statutory meaning of ‘father’ to lesbian non-biological co-parents in the HFE Act 2008.
63. J Butler Undoing Gender (2004) cited in Beresford, S ‘Get over your (legal) self: a brief history of lesbians, motherhood and the law’ (2008) 30 Journal of Social Welfare and Family Law 95 .
64. Jackson, E ‘What is a parent?’ in Diduck, A and Donovan, K (eds) Feminist Perspectives on Family Law (London: Routledge Cavendish, 2006) p 59.
65. It is telling to note the existing official confusion: while the Government's website information on birth registration refers to ‘parentage’, the HFE Acts refer to ‘parenthood’.
66. This modifies the proposal by Smith for genetic parentage to be recorded as an ‘additional layer to the legal recognition of parenthood’ insofar as my argument here is for a complete distinction between biological parentage and the legal status of parenthood: Smith, above n 12.
67. Consequently, we would not subscribe to the claim that in ‘normal’ heterosexual procreation, reliance upon intention could result in fatherless children as suggested by Horsey, K ‘Challenging presumptions: legal parenthood and surrogacy arrangements’ 2010 22 CFLQ 449 . On the contrary, the act of intercourse would evidence intention, in the absence of any other declared intention.
68. Steinbeck refers to the notion of ‘biology plus’: the biological link is accompanied by a real relationship where the father has the opportunity to develop a relationship with the child: Steinbeck, B ‘Defining parenthood’ (2005) 13 International Journal of Children's Rights 287 at 301. Likewise, Bernstein refers to the ‘involved sperm donor’: Bernstein, F ‘This child does have two mothers and a sperm donor with visitation’ (1996) 22 NYU Rev L & Soc Change 1 at 5.
69. See Herring, J Family Law (London: Pearson Longman, 2011) p 370.
70. In the same way that knowledge of a material risk of injury resulting from a breach of a duty of care can be enough to show causation in negligence.
71. Given the complexities and importance of gestation, this paper does not question the existing legal rule that the woman who gives birth is the legal mother. This question is explored more fully by Horsey, above n 67.
72. There is no possibility of ‘self-arranged or DIY’ egg donation as by its nature, egg donation and subsequent IVF necessarily require the intervention of a clinic and the application of HFE Act 2008.
73. Such is the position in the USA where the Supreme Court has recognised that a biological connection offers an opportunity to develop a relationship, but that a contrary intention may override this: Lehr v Robertson 463 US at 262, cited by Roberts, above n 36.
74. ‘The family can no longer be an assumed institution in policy discussions, but must be an explicitly self-conscious, constantly reconsidered configuration that reflects both existing reality and collective responsibility’, Fineman, above n 46, p 236.
75. Diduck, above n 33.
76. Above n 49.
77. ‘If biology no longer necessitates the two parent rule – maybe it is time to abandon it’: Herring, above n 69, p 336.
78. ML, AR v RWB, SWB EWHC 2455 (Fam).
79. However, Millbank warns that ‘a shift from biology to intention may be unhelpful if it is simply a shift of focus to the privileged intention of one of the biological parents’. Millbank, J ‘the limits of functional form: lesbian mother litigation in the era of the eternal biological family’ (2008) 22 IJLPF 149 . But this threat would be avoided once the biological link alone is deprived of any legal consequence and once we step outside the confines of the two-parents-only model.
80. Above n 25.
81. Above n 24.
82. Sheldon identifies the increasing trend of concentrating upon the vertical relationship parent-child, but notes that with separated heterosexual couples, it is difficult to ignore the necessary on-going horizontal relationship between the adults in making arrangements for the children: Sheldon, above n 23, at 381.
83. Re D, above n 24, at paras 93 and 95.
84. Re B, above n 24, para 29.
85. A v C FLR 453 at 455.
86. Schultz, M ‘Reproductive technology and intent-based parenthood – an opportunity for gender neutrality’ (1990) Wis L Rev 297 .
87. Per Hedley J in Re B, above n 24, para 24.
88. Or even a pre-conception agreement. Some US states uphold such pre-conception agreements where the intention of parents is contractually binding: see Baker, above n 13.
89. Other European jurisdictions, some US states, Canada and some Australian states also give effect to intention for parental status, but there are many differences between them. France is chosen here for the insight into the practical implications.
90. Art 335 Civil code.
91. Under French law, a woman may give birth anonymously without indicating her identity on the birth certificate: Art 326 Civil code.
92. Art 337 Civil code.
93. Art 334–8, Civil code states that parenthood can be recognised either by the formal declaration (reconnaissance) or by possession d'état. Interestingly, if the mother is not registered on the birth certificate, existence of possession d'état will create a presumption of legal parenthood upon her.
94. Art 311–2, Civil code.
95. F Terré and D Fenouillet Droit Civil: les personnes, la famille, les incapacités (Paris: Précis Dalloz, 6th edn, 1996) p 631. The authors go on to note that the concept of possesion d'état is ‘a way of recognising an intended and wanted parentage, lived day-to-day; it is the obvious sign of a moderate law.’ Ibid (my translation).
96. The New Zealand Law Commission proposed that legal parenthood be assigned to a known donor through transforming the agreement between the parties into a court ordered consent order, but this was not adopted: New Issues in Legal Parenthood NZLC, Report 88 (2005) available at http://www.lawcom.govt.nz/sites/default/files/publications/2004/03/Publication_91_232_Part_1_2PP54%20prelims-1-2.pdf.
97. Millbank proposes the registration of pre-conception intention, highlighting the need not only to articulate the expected role of the biological father, but also of the intended co-parent: J Millbank, above n 79. Such an express declaration would be obligatory where ‘donation’ occurs via intercourse in order to rebut the presumed intention which flows from the act.
98. Per Hedley J in ML and AR v RWB, SWB, above n 78.
99. Once we have lost the shackles of the two-parents-only model, there is no reason why the husband could not be recognised as a legal parent if he intends to carry out a functional parenting role with the mother – similar to the ‘opt-in process’ proposed by Millbank, above n 79. If the biological father objects, once again the court would have to rule as to the legal parenthood.
100. Such an approach, the author asserts, would enable family policy to prioritise the ‘nurturing element’ of family relationships over the existing predominance of biology: Fineman, above n 46, p 200.
101. According to Lind and Hewitt, parental status is a ‘tag of identity’: Lind, C and Hewitt, T ‘Law and the complexities of parenting: parental status and parental function’ (2009) 31 Journal of Social Welfare and Family Law 391 at 393.
* The author is extremely grateful to the anonymous referees for their instructive comments and useful suggestions. The author also wishes to thank Aleardo Zanghellini, Rosemary Auchmuty, Grace James and Lizzie Cooke for reading an earlier draft of this article. The usual caveat applies.
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