Abstract
This article analyses the laws that govern the allocation of parental responsibility for children conceived through non-coital reproduction by lesbians and gay men in England/Wales and Australia. In 2008 both jurisdictions introduced important reforms affecting this area of law, providing new options for the legal recognition of parent–child relationships in lesbian and gay households. However, the practical usefulness or effectiveness of the reforms may be limited by the excessive complexity or obscurity of the system of parental responsibility thus introduced. Furthermore, the reform Acts encourage the formation of some family structures—especially homonuclear families—while discouraging the emergence of more imaginative and cooperative parenting configurations at odds with heteronormative parenting scripts. Only through a clearer commitment to intentionality as a ground for the allocation of parental responsibility will future reform be likely to adequately protect the interests of lesbian and gay parents and their children.
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Notes
Explanatory Notes to the Human Fertilisation and Embryology Act 2008, para 8. Although the HFE Act 2008 applies to the whole of the UK, in this article I limit my analysis to its effects on parental responsibility and parenthood, and its interaction with relevant legislation, in England and Wales (parenting is not regulated identically across the three UK jurisdictions). Accordingly, I shall refer to “England and Wales”, rather than “the UK”, throughout the paper.
Family Law Act 1975 (Cth), ss 61D, 65C; Family Court Act 1997 (WA), ss 84, 88.
Children Act 1989, s 12(2).
In England and Wales, courts have been inconsistent in their use of residence orders: while some of them grant such orders only if the child is actually to reside with the person in whose favour the order is made, others grant them merely as a device to attribute parental responsibility to the person seeking the order, even if he or she is not actually to share the same household as the child (Arnot and Harte 2005). This diversity of approaches in practice may be of little consequence to families where a same-sex co-parent cohabits with a biological parent, but it does make a difference to those more unconventional lesbian and gay families in which parenting is shared (and hence parental responsibility sought) by a person not residing with the child. Furthermore, even in the case of homo-nuclear families, Bailey-Harris has noted that although there are a number of unreported decisions granting joint residence orders to lesbian co-mothers, these orders “are generally seen in reported case law as exceptional, and so the application’s success is not wholly guaranteed” (1999, p. 565).
The use of court orders in many jurisdictions unjustly to deprive gay men or lesbians of their parental rights, or to impose on them more mainstream family arrangements, is well documented: see, e.g. Arnup (1999).
HFE Act 2008, s 33. The exception to this rule is when, by virtue of adoption, the child is no longer regarded as hers.
Children Act 1989, s 2(2)(a).
HFE Act 2008, s 35.
Children Act 1989, s 2(1).
HFE Act 2008, s 42.
HFE Act 2008, s 44(e).
McCandless and Sheldon go on to raise interesting questions about the reasons for not allowing parenting by two or more people who are not sexually bonded, and highlight that “these kinds of normative questions were only addressed in a very limited way in this reform process” (2010, p. 199).
HFE Act 2008, ss 36, 38, 43, 45. Sections 36 and 43 provide that, under certain conditions, a man or a woman may be considered a parent in addition to, and with the consent of, the birth mother if and only if someone does not already qualify as a second parent by virtue of marriage or civil partnership-related presumptions. Sections 38 and 45 prevent any other person from being counted among the child’s parents (even if all the parties were in agreement that they should so count) when a child already has a second parent by virtue of ss 36 and 45.
HFE Act 2008, Sch 6, s 26(2).
The prerequisites as to the birth mother’s consent, period of cohabitation with the child, or court’s leave, which apply to applications for residence orders, do not apply to applications for these orders.
Children Act 1989, s 4A. In practice, these co-mothers will be either women who have entered a civil partnership with the birth mother after the child’s birth; or women who have entered such a partnership after the fertilisation procedure but before the birth and who do not qualify as parents under s 43 because, at the time of the fertilisation procedure, they were not de facto partners of the birth mothers who had given notice of their intention to be treated as parents.
Children Act 1989, ss 10(2)(b), 10(5)(b)–(c), 10(10).
Welfare Reform Act 2009, Sch 6, Part 1, para 4 (inserting ss 2B–2D in the Births and Deaths Registration Act 1953) and para 11 (rewording subs (1) and inserting subs (1)(h) in s 10 of the Births and Deaths Registration Act 1953). The mother is not required to provide information relating to the father only in specified circumstances—for instance, if she makes a declaration to the effect that he is dead, or is unknown or might jeopardise her or the child’s safety if contacted: see Welfare Reform Act 2009, Sch 6, Part 1, para 4, inserting s 2B in the Births and Deaths Registration Act 1953.
HFE Act 2008, ss 43 and 25(2)(1A).
HFE Act 2008, Sch 6, s 27(2)–(4).
Children Act 1989, s 2(5).
Children Act 1989, s 4(1)(b)–(c).
Paternal status is generally proved through genetic testing (Lind 2003, p. 328).
Family Law Act 1986, s 55A.
HFE Act 2008, s 45(1).
Children Act 1989, ss 4(1)(c), 4(1A)(a).
HFE Act 2008, s 45(1).
Supra n 18.
Surrogacy Arrangements Act 1985, s 1A.
Children Act 1989, s 2(9).
HFE Act 1990, s 30.
The Commonwealth Constitution does not expressly give the federal Parliament the power to legislate on issues of custody and guardianship of children when these are not incidental to divorce. However, all the States except Western Australia have referred to the Commonwealth their powers to legislate on the issue of parental responsibility over ex-nuptial children, by making use of s 51(xxxvii) of the federal Constitution (“The Parliament shall … have power to make laws … with respect to… [m]atters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States”).
In Aldridge & Keaton [2009] FamCAFC 229, the Full Court of the Family Court has recently expressed some doubts, in obiter, about whether s 60H(1), which is to the effect that a child born as a result of assisted conception is the child of its birth mother and her consenting partner, results in the partner qualifying as a ‘parent’ under Part VII of the Act, and hence in him or her having parental responsibility. The Court justified its doubts on the basis that the definition of ‘parent’ in the Act’s interpretation section (s 4) has not been specifically modified expressly to clarify that it also includes s 60H parents. However, the definition of ‘parent’ in s 4 is not exhaustive. Furthermore, the Court itself recognised that under a purposive interpretation, s 60H parents would indeed be Part VII parents; and the purposive approach to statutory interpretation is mandated by s 15AA of the Acts Interpretation Act 1901 (Cth). For these reasons, my discussion in the text assumes that s 60H parents are indeed Part VII parents with parental responsibility.
Consent is presumed, but the presumption can be rebutted: s 60H(5).
Compare Aldridge & Keaton [2009] FMCAfam 229 at para 35.
This is because the laws prescribed for the purposes of this provision by the Family Law Regulations 1984 (Cth), reg 12C either do not contemplate lesbian couples at all (Queensland, South Australia, Tasmania) or because, where they do, they provide that the members of a de facto couple are the child’s parents where they both consent to the procedure (New South Wales, Victoria, Northern Territory, ACT and Western Australia)—something that s 60H(1)(b)(i) already provides in its own right.
This is because, for the purposes of s 60H(1)(b)(ii) the Family Law Regulations do not prescribe only the NSW provisions according to which the members of a de facto couple are the child’s parents where they both consent to the procedure; rather, they also prescribe—whether by design or not, and in contrast to other States or Territories—the whole of the Status of Children Act 1996 (NSW), including its parentage presumptions arising from birth registration.
[2009] FMCAfam 92.
Nor is it clear that the Regulations could prescribe any State law dealing with the position of sperm donors, as s 60H(3) speaks of laws declaring that a child is the child of a man, while the relevant State laws are all to the effect that a sperm donor who is neither the husband nor the de facto partner of the recipient is not the child’s father: Parentage Act 2004 (ACT), s 11(5); Status of Children Act 1996 (NSW), s 14(2); Status of Children Act 1979 (NT), s 5F; Status of Children Act 1978 (Qld), ss 18, 21, 22; Family Relationships Act 1975 (SA), s 10E(2); Status of Children Act 1974 (Tas), s 10C(2); Status of Children Act 1974 (Vic), ss 10C–10D, 13, 15; Artificial Conception Act 1985 (WA), s 7(2).
Bv J (1996) 21 Fam LR 186, 196.
Prior to the reform, the restricting interpretation found support in the case Re Patrick (2002) 28 Fam LR 579.
Except that if a judicial decision existed identifying somebody as a parent in these cases, the Family Law Act would conclusively presume them to be a parent for its purposes: Family Law Act, ss 69S, 69U.
This is because, according to the restricting interpretation, a child conceived through non-coital reproduction is a man’s child for the purposes of the Family Law Act only if the child is his under a State law prescribed in the regulations, but, as we have seen no State laws are prescribed by the Family Law Regulations for the purposes of s 60H(3). But the implications of the restricting interpretation are farther reaching. Technically, the interpretation leaves children conceived through non-coital reproduction by NSW single mothers (including lesbian ones) without any legal parent at all. This is because s 60H(3) is mirrored by a provision applying to mothers (s 60H(2)), which provides that when a (single) woman gives birth to a child following a fertilisation procedure, she is a parent if she qualifies as such under a prescribed State law. All the laws prescribed for the purposes of this provision by reg 12CA of the Family Law Regulations 1984 provide that the birth mother legally qualifies as a mother while an ovum donor does not—except for the NSW law which, while specifying that an ovum donor is not a parent, does not go on to say that a birth mother is: Status of Children Act 1996 (NSW), s 14.
Prior to the reforms, the obiter dicta of two cases supported this interpretation: B v J (1996) 21 Fam LR 186, 196–7 and Re Mark (2003) FLC ¶ 93–173, 78767–78770.
Unless they are expressly excluded, as in the case of sperm donors when the child is born to a couple both of whose members qualify as parents under s 60H(1).
Several years ago, Justice Fogarty controversially implied in obiter that genetic connection is sufficient to make sperm donors automatically qualify as parents under the children’s provisions of the Act. B v J (1996) 21 Fam LR 186, 196–7. The suggestion is controversial because it would seem to allow a sperm donor to successfully claim parental status with respect to the child born to a single woman despite an agreement to the contrary between the parties at the time when donation or conception occurred.
Re Mark (2003) FLC ¶ 93–173, 78767–70. The court’s approach would certainly cover a lesbian single mother who gives birth following alternative insemination, thus rectifying what would be the NSW anomaly under the restricting interpretation (see supra n 43).
Ibid at 78770.
The fairness of this approach (which bestows upon gay donor-dads in lesbian-gay co-parenting projects both parental status and responsibility) would be conditional upon the assumption that by ‘intention’ we understand the man’s intention disclosed to the birth mother at the time of donation, rather than his own private mental states.
A co-mother would not qualify under s 60H if for, example, she and the birth mother decided to co-parent the child only after the birth mother had already become pregnant.
In contrast to the other States, the law on parental responsibility applicable to ex-nuptial children in Western Australia is State law, because Western Australia never referred its powers to legislate on this subject-matter to the Commonwealth. The relevant statute provides, as the Family Law Act does for the rest of Australia, that a child’s parents have parental responsibility over it (Family Court Act 1997 (WA), s 69). However, in Western Australia the meaning of ‘parent’ is clearer: a sperm donor is always excluded from its scope (Artificial Conception Act 1985 (WA), s 7), while a lesbian co-mother is included (s 6A).
Family Law Regulations 1984 (Cth), reg 12CAA.
The Western Australian law only allows single people or two people of different sex to apply for a parentage order, and then only if they cannot conceive a child because of medical reasons: Surrogacy Act 2008 (WA), s 19. This not only rules out gay couples, but also most single gay men, who, if they seek surrogacy, would do so in order to father a child without having sexual intercourse rather than because they are medically infertile.
The law provides that a parentage order can be applied for by either or both of two people who have entered a surrogacy agreement with a surrogate, so long as at least one of the applicants has a genetic relation with the child and neither the surrogate nor any other person to whom certain parenting presumptions apply has a genetic relationship with the child: Parentage Act 2004 (ACT), Division 2.5.
Status of Children Act 1974 (Vic), ss 20–26. The law is worded in such a way as to suggest that more than two people, as well as people who are not in a sexually intimate adult relationship, could be commissioning parents in a surrogacy arrangement.
The Queensland regime (Surrogacy Act 2009 (Qld), ss 21–22) resembles Victoria’s, while the South Australian one (Family Relationships Act 1975 (SA), ss 10HA–10HB) resembles the Western Australian one and excludes non-heterosexual couples (as well as single commissioning parents). Note that these newly introduced schemes exist alongside the principle (recognised throughout Australia) that surrogacy agreements are void and unenforceable: Assisted Reproductive Technology Act 2007 (NSW), s 45; Parentage Act 2004 (ACT), s 31; Surrogacy Contracts Act 1993 (Tas), s 7; Surrogacy Act 2008 (WA), s 7; Family Relationships Act 1975 (SA), s 10g; Surrogacy Act 2009 (Qld), s 15. Victoria does not expressly state that surrogacy arrangements are unenforceable but the Status of Children 1974 (Vic), s. 19 does so by implication.
Re Michael: Surrogacy Arrangements [2009] FamCA 691 at para 34.
Family Law Act 1975 (Cth), s 63D. In Western Australia they can be revoked, but not varied, by further agreement: Family Court Act 1997 (WA), s 78.
Re Patrick (2002) 28 Fam LR 579, 648.
Ibid.
Australian law requires courts to take the child’s best interest as the primary consideration when deciding residence, contact and other such disputes: Family Law Act 1975 (Cth), s 65E; Family Court Act 1997 (WA), s 90.
Family Law Act 1975 (Cth), s 68F; Family Court Act 1997 (WA), s 166.
Re Patrick (2002) 28 Fam LR 579, 649.
Cf. Re Mark (2003) FLC ¶ 93–173, 78774.
Family Law Act 1975 (Cth), ss 63B, 63C.
See Re Patrick (2002) 28 Fam LR 579, 648.
Unless the surrogacy arrangement is in Victoria, or is in the ACT and is sought by two people: see previous section.
Or on relevant laws being passed at State level and then being prescribed for the purpose of s 60H(3).
I borrow this expression from Foucault, who used it to describe the disciplinary effects which the body of knowledge produced by the human sciences tend to produce (Rabinow and Dreyfus 1982, p. 187). Foucault thought of the power of law as quintessentially repressive in nature, but it has become increasingly clear that the paradigm of juridical power also encompasses disciplinary and normalising dimensions (Smart 1990).
In relation to surrogacy, for example, there are strong reasons for favouring a system making void any prenatal parental agreement in which the gestational mother contracts away her parental responsibility (Zanghellini 2009, p. 179).
The idea of “‘intentional parenthood’ … captures a set of kinship-building practices deliberately engaged in by a purely ‘intentional’ (i.e. non biological) parent and, generally, other adults whose parental status is less socially problematic (e.g. a biological parent) so as to construct and solidify the parental status of the ‘intentional parent’” (Zanghellini 2009, pp. 165–166). Crucially, as illustrated by the case of lesbian non-biological mothers, caregiving tends to be central to such kinship-building practices (Boyd 2007, p. 89). Furthermore, caregiving itself, as a ground for vesting parental responsibility in the caregiver, cannot be logically divorced from the caregiver’s intention to parent (at least if the allocation is to do justice to the parent as well as the child).
Parental presumptions in favour of birth mothers are justifiable on the ground of the principle of intentionality itself coupled with caregiving considerations (because pregnancy and gestation count as caregiving). It is these caregiving considerations that, in my view, make the position of a birth mother qualitatively different from that of any other participant in the parenting project, including a birth mother’s partner who has consented to the procedure and planned the pregnancy with the birth mother (Zanghellini 2009, pp. 162, 164, 178). For a different view see Millbank (2008, p. 166).
Note that foregrounding intentionality as the justificatory ground for legal reform centring parental agreement does not have to come at the expense of de-authorising other morally defensible criteria (such as caregiving principles) to guide decision-making in the courts. See generally Zanghellini (2009).
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Acknowledgments
I am grateful to the anonymous referees and the Editorial Board of Feminist Legal Studies for their suggestions for improvement. Many thanks also to the organisers of the HFEA Workshop, Keele University, 30 March 2009, where an early version of this paper was presented.
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Zanghellini, A. Lesbian and Gay Parents and Reproductive Technologies: The 2008 Australian and UK Reforms. Fem Leg Stud 18, 227–251 (2010). https://doi.org/10.1007/s10691-010-9163-0
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DOI: https://doi.org/10.1007/s10691-010-9163-0