Channelling the messiness of diverse family lives: resisting the calls to order and de-centring the hetero-normative family

Abstract

The Human Fertilisation and Embryology Act 2008 (HFEA 2008) amended the parenthood provisions in order to achieve a level of consistency between same-sex and heterosexual parents who rely on reproductive technologies to achieve parenthood and to eradicate discrimination. ¹ To that end, the legislation now allows for a lesbian couple to be registered as the child's parents if certain conditions are met. Academic debates on the significance of the amending legislation have begun.2

Keywords:

• parenthood provisions
• same-sex couples
• reproductive technologies

Notes

 1. Amending the Human Fertilisation and Embryology Act 1990.

 2. See, for example, McCandless, J. & Sheldon, S. 2010. The Human Fertilisation and Embryology Act (2008) and the tenacity of the sexual family form. Modern law review, 73 (2), 175–207; Smith, L. 2010. Clashing symbols? Reconciling support for fathers and fatherless families after the Human Fertilisation and Embryology Act 2008. Child and family law quarterly, 22 (1), 46–70; Lind, C. & Hewitt, T. 2009. Law and the complexities of parenting: parental status and parental function. Journal of social, welfare and family law, 31 (4), 391–406 at 392–393.

 3. Drawing upon the work of Carl E. Schneider, 1992. The channelling function in family law. Hofstra law review, 20, 495–532.

 4. For example, R D (contact and parental responsibility: lesbian mothers and known father) (2006) EWHC 2 (Fam), (2006) 1 FCR 556. And R B (role of biological father) (2008) 1 FLR 1015.

 5. See further L. Smith, 2010, and C. Lind & T. Hewitt, 2009, supra n. 2.

 6. As per s. 44 of the HFEA 2008.

 7. Ss. 42–43 of the HFEA 2008.

 8. See further ss. 43 and 44.

 9. See further http://www.hfea.gov.uk for the updated consent forms.

10. Supra n. 2 referring to the Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004, SI 2004/1511.

11. Supra n. 2 at 188.

12. Ibid.

13. Supra n. 2.

14. Supra n. 3 at 496.

15. Ibid at 503.

16. Supra n. 3 at 504.

17. See further n. 2 at 190.

18. See, for example, The Centre for Social Justice, 2010. Green paper on the family. London: Centre for Social Justice.

19. See further n. 3 at 508 for an exposition on how established social institutions save working out how to structure a relationship and work out their expectations of each other.

20. Collier, R. & Sheldon, S., eds., 2006. Fathers' rights activism and law reform in comparative perspective. Oxford, England: Hart; Lind, C. & Hewitt, T. 2009. Law and the complexities of parenting: parental status and parental function. Journal of social welfare and family law, 31 (4), 391–406.

21. Hunt, A. 1999. Governing morals: a social history of moral regulation. Cambridge, England: Cambridge University Press.

22. Collier, R. 2005. Fathers 4 Justice, law and the new politics of fatherhood. Child and family law quarterly, 17 (4), 511–535 at 515.

23. Supra n. 2 footnote 93 at 190.

24. Ibid at 191.

25. Diduck, A., 2007. ‘If only we can find the appropriate terms to use the issue will be solved’: law, identity and parenthood. Child and family law quarterly, 458: a comment the author attributes to Sarah Beresford.

26. Sheldon, S. 2005. Fragmenting fatherhood: the regulation of reproductive technologies. Modern law review 68, 523–553 at 527.

27. As amended by s.14(2)(b) of the HFEA 2008. See further Morris A. & Nott, S. 2009. Rights and responsibilities: contested parenthood. Journal of social welfare and family law, 31 (1), 3–16.

28. L. Smith supra n. 2 at 49.

29. Ss.39–40 of the HFEA 2008.

30. L. Smith supra n. 2 at 52.

31. Hansard Commons Debates, cols. 176–177, 20 May 2008.

32. She mounts a critique of the Conservative members' comments on fatherless families at col. 178, ibid.

33. Col. 182, ibid.

34. Col. 181, ibid.

35. C. Smart, 1992. Disruptive bodies and unruly sex: the regulation of reproduction and sexuality in the nineteenth century. In: C. Smart, ed. Regulating womanhood: historical essays on marriage, motherhood and sexuality. London: Routledge.

36. Smith-Squire, A., 2007. ‘I slept with my sperm donor’ says mum longing for a baby, Daily Mail, 18 Oct.; MacDonald, S., 2010. Sperm donor websites ‘put women at risk’, The Sunday Times, 28 Feb.

37. Donovan, C., 2006. Genetics, fathers and families: exploring the implications of changing the law in favour of identifying sperm donors. Social & legal studies, 15 (4), 494–510 at 500.

38. Ibid at 501.

39. See, for example, the empirical research of Dunne, G., 1999. A passion for ‘sameness’: sexuality and gender accountability. In: E. Silva and C. Smart, eds. The ‘new’ family? London: Sage; Weeks, J., Heaphy, B., and C. Donovan, 2001. Same sex intimacies: families of choice and other life experiments. London: Routledge.

40. See, for example, Smart, C., 1987. ‘There is of course the distinction dictated by nature’: law and the problem of paternity. In: M. Stanworth, ed. Reproductive technologies: gender, motherhood and medicine. Cambridge, England: Polity; Dennis, N. and Erdos, G., 1993. Families without fatherhood. London: Institute of Economic Affairs; Collier, R. & Sheldon, S., 2006. Fathers rights activism and legal reform. Oxford, England: Hart; Duncan Smith, I., 2008. Now they want to abolish fatherhood, Mail on Sunday, 18 Nov.; Collier, R., 2008. Engaging fathers? Responsibility, law and the ‘problem of fatherhood’. In: J. Bridgeman, C. Lind, and H. Keating, eds. Responsibility, law and the family. Aldershot, England: Ashgate; Collier, R. & Sheldon, S., 2008. Fragmenting fatherhood: a socio-legal study. Oxford, England: Hart.

41. See, for example, Douglas, G., 1993. Assisted reproduction and the welfare of the child. 46 Current legal problems, 53; Jones, C., 2005. Looking like a family: negotiating bio-genetic continuity in British lesbian families using licensed donor insemination. Sexualities, 8 (2), 221–237.

42. S.56 of the Welfare Reform Act 2009 inserts s.2A to the Births and Deaths Registration Act 1953 making it mandatory for parents to register the birth of a child jointly.

43. As per s.4(1)(a) of the Children Act 1989. S.3(1) outlines parental responsibility as a legal concept.

44. See further Bainham, A. 1989. When is a parent not a parent? Reflections on the unmarried father and his child in English law. International journal of law and the family, 3, 208–239; Eekelaar, J., 1985. Second thoughts on illegitimacy reform. 15 Family law, 261; Wallbank, J., 2002. Clause 106 of the Adoption and Children Bill: legislation for the ‘good father’? Legal studies, 22 (2), discussing s.111 of the Adoption and Children Act 2002.

45. Ibid, and see further, Sheldon, S., 2001. Unmarried fathers and parental responsibility: a convincing case for reform? Feminist legal studies, pp. 93–118; and more recently, Sheldon, S., 2009. From ‘absent objects of blame’ to ‘fathers who want to take responsibility’: reforming birth registration law. Journal of social welfare & family law, 31 (4), 373–389; and Wallbank, J., 2009. ‘Bodies in the shadows’: joint birth registration, parental responsibility and social class. Child & family law quarterly, 21 (3), 267–282.

46. Smith, L., 2006. Is three a crowd? Lesbian mothers' perspectives on parental status in law. CFLQ, 231 at 235.

47. Ibid.

48. Supra n. 44 and 45.

49. See further Wallbank, J. 2009. Parental responsibility and the responsible parent: managing the ‘problem’ of contact. In: R. Probert, S. Gilmore, and J. Herring, eds. Responsible parents and parental responsibility. Oxford, England: Hart, 295–314.

50. Supra n. 46.

51. Supra n. 2.

52. Supra n. 2.

53. See further supra n. 45 and n. 49.

54. Under the various provisions of the Children Act 1989.

55. Supra n. 2.

56. See supra n. 2 at 400–401.

57. Supra n. 46.

58. Wallbank, J., 2002. Too many mothers? Surrogacy, kinship and the welfare of the child. Medical law review, 10 (3), 271.

59. For, example, in Re S (parental responsibility) (1995) 2 FLR 648; L.J. Ward distinguished between the rights and powers associated with PR and the status that PR confers on the non-residential parent at para. B p. 657. See also, Re C and V (Minors) (parental responsibility and contact) (1998) 1 FCR. For academic discussions, see further Eekelaar, J., 1991. Parental responsibility: state of nature or nature of the state? Journal of social welfare and family law, 13, 37; Gilmore, S., 2003. Parental responsibility and the unmarried father – a new dimension to the debate. Child and family law quarterly, 15 (1); Reece, H., 2009. The degradation of parental responsibility. In: R. Probert, S. Gilmore, and J. Herring, eds. Responsible parents and parental responsibility. Oxford, England; Hart.

60. Dunne, G., 2000. Opting into motherhood: lesbians blurring the boundaries and transforming the meaning of parenthood. 1 Journal of gender and society, 14, 15.

61. Reported in supra n. 46.

62. Bainham, A., 1999. Parentage, parenthood and parental responsibility: subtle, elusive yet important distinctions. In: A. Bainham, S.D. Sclater, & M. Richards, eds. What is a parent?: a socio-legal analysis. Oxford, England: Hart.

63. The three-pronged test for awarding parental responsibility was laid out by Balcombe LJ in Re H (Minors) (Local Authority: Parental Rights) (No. 3) (1991) Fam 151. These include the degree of commitment the father has shown to the child, the degree of attachment between the father and the child, and third, the reasons for applying for the order.

64. See, for example, Hill, J.L., 1991. What does it mean to be a ‘parent’? The claims of biology as the basis for parental rights. 66 New York University law review, 353.

65. There are many issues raised by using intention to parent as a means of determining whether a donor should have parental responsibility, which I cannot do justice in this paper.

66. Re B (role of biological father) (2008) 1 FLR 1015.

67. All facts obtained from the headnote of Re B (role of biological father) (2008) 1 FLR 1015.

68. Under the current framework, only the donor is recognised as the legal parent if the birth mother tells the truth about the child's paternity to the registrar. He has parental responsibility resulting from the act of registration.

69. Supra n. 67.

70. Supra n. 67 para. 16 1020.

71. S.8 of the Children Act 1989.

72. Supra n. 67 paras. 28–29 at 1023.

73. The parenthood provisions do not allow those within prohibited degrees of relationship to be regarded as parents to the child as defined by s.58 of the HFEA 2008. McCandless and Sheldon discuss this point in some depth supra n. 2.

74. Unlike the case of Re G (residence: same sex partner) (2005) 2 FLR 957, where the special significance of the biological relationship is noted. The donor's partner is also registered as B's parent, raising the issue of how far the law might go in respect of attributing a person as a parent. A line could be drawn but this is not the place for determining where that should be and the question might be taken up on another occasion and/or by someone else.

75. Supra n. 67 at 1023 referring to s.1 of the Children Act 1989.

76. Ibid.

77. See, for example, supra n. 18. The message placed central to the Green Paper on the Family is that ‘Family form matters’ at p. 8, ‘Marriage and co-habitation are not the same thing’ at p. 9. Marriage (and there is no mention of civil partnership) is best. The government has also announced the abolition of the Human Fertilisation and Embryology Authority as part of its ‘Review of arm's length bodies to cut bureaucracy’ announced by Andrew Lansley, Health Secretary, 26 July 2010: http://www.dh.gov.uk. The future of the regulation of reproductive technologies is therefore uncertain.