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PARENTHOOD: LEGAL PARENTAL STATUS AND PARENTAL RESPONSIBILITY Lind and Hewitt, (2009) 31 Journal of Social Welfare and Family Law 391-406
- Discuss step-parents, same-sex couples and assisted reproduction as relatively recent phenomena and the extent to which these modern conceptions of the family are helpful in our understanding of, and the operation of, family law on parental responsibility
- Do they serve as a helpful means of fragmenting parental responsibility, or could they serve to modify and adapt the law in the future?
- Lind and Hewitt consider that these concepts of the family could help us embrace a formal fragmenting of parental status which in turn can help restore clarity to parental responsibility both conceptually and legally
- Consideration of the lack of uniformity of legal consequences dependent on the parental structure in question could lead to resolution of this issue
- Use in conjunction with Hale's below article which explores the confusion and difficulty in applying parental responsibility law to "new" family forms, and the need to improve this Hale, (2014) 36 Journal of Social Welfare and Family Law 26
- Here Hale considers that while there is no welfare deficit in both national and international law, the manner in which the welfare principle is applied to "new" family forms i.e. same sex couples etc, is random and needs specifying. This perhaps suggest that the current operation of family law and the welfare principle may be heteronormative (because of it's focus and clear application in heterosexual couples i.e. the focus on these couples), and ableist (difficulty in applicability in the context of surrogacy/ donors etc, assuming that families "ought" to be conceived naturally)
- Does the welfare principle and its simple applicability in heterosexual, naturally conceived parenthood structures lend itself to subtly enforcing stereotypes/ expectations of what families and parents "ought" to look like?
- The law's failure to provide for "new" family forms is unforgiveable - these are the minority, and need to be supported
LEGAL PARENTAL STATUS-Re G (Children) (Residence: Same Sex Partner)  UKHL 43 Baroness Hale in Re G (Children) (Residence: Same-Sex Partner) distinguished three key elements of parenthood: o (1) Legal Parenthood (who in law is the parent) o (2) Genetic Parenthood (whose sperm and egg created the child) o (3) Social Parenthood (who carries out the day-to-day nurturing of the child) Hale placed weight on the biological link which only one of the two women had - is this right?
Talks about the significance of biology Hale - on facts on particular case - both women had paid same level of attention to the child and due to facts it would be impossible to have shared residence - so the gestational link was essentially a tie breaker Fathers' rights groups say this is favouring mothers over fathers as men can't give birth and give these 9 months to the child. A v B and C  EWCA Civ 285 Addresses issue of creation of legal parental status for a third party. Here homosexual man and donated sperm to lesbian couples who were old friends Mother and father had married because mother's family didn't accept her sexualit but it was always accepted that mother and partner would be primary care givers to child. F's role as biological father would be welcomed and acknowledged, but his relationship with his son would be secondary
1. F applied for defined contact order (i.e. specifically how often and when he could see his son) and M and R (partner) responded by applying for joint residence order, which would confer parental responsibility on R also (so father already presumed to have parental status?) Judge granted joint residence order and defined contact order as 5-6 hours once a fortnight. Judge said that contact hours would be unlikely to change in foreseeable future because F's role should be secondary, enough for X (child) to know his father but not to fracture the nuclear family F's appeal allowed because trial judge's reasoning had not been laid clear enough for future judges to rely upon and also his conclusion would have set a precedent for all cases of two female parents and an identified male parent which would be fundamentally wrong, as all cases were fact specific Ultimately the only principle which mattered was child welfare M had asserted that weight should be attached to adult autnomy and plans made for the future relationship between child and relevant adults, and this should be approached with caution as "human emotions were powerful and inconstant" Primary vs secondary parents was a dangerous concept as it risked demeaning the known donor who in some cases may have an important role (MA v RS) While M and R were clearly primary carers, it was unjust to categorise F as a secondary parent Trial judges' guidance was too solid in light of the numerous unforeseeable factors - he had been too strong It was referred to Family Division judge who would hear it in a year's time so they might have the opportunity to assess "the immediate future in the light of the immediate past" Re G (A Child) (or S v D and E)  EWHC 134 (Fam) Contact orders applied for under s8 Children Act 1989 Gay couple provided sperm to two separate lesbian couples on the knowledge that they would not have legal parental status, nor any financial commitments, but they would have contact with the child as they were all friends Later one of the men provided sperm again to the lesbian couple he had provided sperm to before so they could have another child, following Human Fertilisation and Embryology Act 2008 his name was included on the birth certificate Disagreements began and S and T (the two men) were unable to apply for contact orders as they were not the legal parents of the first children, they needed the court's permission to make an application The two lesbian couples contended that the intention of parliament had been to protect same sex families who had conceived with sperm donors and that their status as parents should be exclusive and absolute The sperm donors argued that the 2008 act had not eradicated their status as genetic parents (as per Hale in Re G Children above) who might be allowed by the court to play a role in the life of the child It was held that when biological fathers applied for leave to apply for a contact order under s8 1989 act, "the court could take all relevant matters into account, including the reforms implemented in the 2008 Act, the policy underpinning those reforms and the factors identified in s.10(9) of the 1989 Act" The 2008 act put lesbian couples and their children in exactly the same legal position as other types of parent and child, and the relationship between a same sex couple constituted Art 8 ECHR right of a family life All cases would be fact specific Given the context of the situation in that they had all been friends, that the fathers had had a lot of contact with the children anyway, and that it was arguable that they may have had what might constitute a family life under article 8, they were given leave to apply for a contact order and were therefore granted to make applications in relation to the first children who had come from the sperm they had provided Establishing Legal Parental Status
a. The Basic Rule: Legal Parenthood Follows Biological Parenthood
- Leeds Teaching NHS Hospital Trust v A  1 FLR 1091
- In Leeds Teaching Hospitals NHS Trust v Mr and Mrs A - two married couples had approached a clinic for assistance in conceiving. In an error the sperm of one husband was used in the insemination of the other wife.
Twins were born and the question of fatherhood arose. Clear that the mother's husband and not the sperm donor would raise the children as their father and the court anticipated that he would successfully adopt them but it allocated fatherhood - under the statutory rules - to the 'donor'. Aspects of parental responsibility were awarded to a man who was not going to play any parental role in the child's life. Why is it possible for parental responsibility to be so generously drawn while parental status remains so constrained and distant form social reality?
However, it must be noted that whilst the donor was given parental status, he could not claim to have a family life with the child Fallback decision is the genetic father is the actual father - therefore at base we're looking for genetic link First immediate thing we look for is genetic think, from this flows parental status though decidedly not parental responsibility Both the biological father and the husband wanted legal parentage but ultimately it was granted to the biological father. The husband could be granted parental responsibility and could adopt the children but he was not considered their legal father in the immediate instance S28 Fertilisation and Embryology Act 2008 on the "meaning of father" i.e. if it is shown that the husband did not consent to the embryo being placed in the woman then he will not be considered the father, and in this case because obviously he would not have consented to the embryo being placed in his wife if he had known it would not be his "child", this section could not apply so he could not be considered to be the legal parent under the legislation Ultimately, then genetic parentage is held in high esteem, rightly or wrongly R (JK) v Registrar General  EWHC 990 (Admin) Biological father was transgender woman who began identifying as female after birth of first child but before second On both birth certificates, she was identified as "father/ father parent" (the latter being after the 2008 Act) and on the first one she was identified by her dead name She wanted to have the birth certificates changed Ultimately she was denied this right as it was said to impede on the rights of the children to know their identity/ know their parentage and that making such a significant change to their birth certificates would impede upon their rights While it was acknowledged that the "father's" rights might have been breached, in practice it was basically held that maintaining this breach of her rights was a better alternative than impeding on or compromising the rights of her children to have access to the original information Re Z  EWFC 73 Single father was barred from making an application and having an order made in his favour under s54 for parental responsibility of a child he had had through a US surrogate, because law referred to applications made by two people and he was only one Bad because single people can adopt - why not be bestowed with parental responsibility for child conceived through surrogate? Discriminatory Court basically justified their decision by saying that it had been a constant historical notion throughout the law that applicants for parental responsibility had been made by two people. Distinguished it from adoption because adoptive criteria had morphed and adapted over the years, surrogacy and parental responsibility law had not yet done this FFS so grim and stupid, why won't the court just do something?
b. Assisted Reproductive Technologies (ART)
- Human Fertilisation and Embryology Act 2008, ss 33, 35-37, 42-44, 54 - have "underlying genetic rules"
- HFEA s33: the woman carrying or has carried child and gives birth to child, will be treated as the mother o When you split genetic and gestation, the latter wins out
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