Rights for children- adult work for their welfare?
Parentage- genetic links, how this person is created, biological contribution
Parenthood- can contribute parentage but not enjoy parenthood status of the child ie. Sperm donation/ Legal sperm donation Couple who received the reproductive technology, mother= women received reproductive technology, legal father= partner of the said woman
Parental responsibilities- legal responsibilities, usually legal parenthood enjoy but can be separate ie. Unmarried fathers need to acquire the legal status of parental responsibilities, people who are not parents can acquire ie. Appointed as special guardian have legal status of parental responsibilities without being the parents ie. Someone could not take up such responsibilities due to drug addiction
Who are a child’s parents?
What are the legal consequences of parenthood? - need clarification on issues of the legal status
Determining parenthood in natural and assisted conception (identification- because of reproductive technology nowadays)
Who is a parent?
Several different approaches to determining parenthood
Johnson (1999) identifies 4 components:
Genetic component: 2 sets of chromosomes –inherited from mother and father, combination of their 2 sets identified by DNA (entirely accurate? Breakthrough technology for baby to born from 3 person DNA- for woman who have genetic disease passed on through maternity, now combine two eggs from woman+ healthy egg donor to make a healthy egg to prevent genetic disease passing on)
Coital component: act of mating – sexual intercourse during the time and count the gestation period to determine parentage (ancient time method)
Gestational component: exclusively female – talk about maternal parentage because in that time paternal parentage is hard to determine. This is obsolete nowadays, now can trace with certainty
Post- natal component: social parenthood – parentage and parenthood is not only biologically having a child rather than the up-bringing of the child, true mark of parentage and parenthood, no need biological connection with child but taking care, social, giving education ,religion to the children- can be the wider family, but loses all value and meaning
But these components can be carried out by different people?
So who shall be regarded as parents?
Re G (2006): Baroness Hale identifies 3 ways to be regarded as natural parent
Genetic parenthood- DNA
Gestational parenthood: “unique bond with the gestational mother”- ignore male, concept cuts through different culture and religion
Social and psychological parenthood- donkey work of bringing up the child
Used 1 & 2 in the case, unique case as implication of judgement, need to show 1 & 2 if argue over parenthood with other person
Lesbian couple prior HEFA- using donor sperm inseminated and pregnant, but agreement is equal mothers to bring up (two children)- relationship broke down with two mothers, usually children stay with best able met welfare, in the case equally matched of two parties tie-breaking factor: genetic and gestational parenthood, not usually applicable in all case but need some distinction
Key issue: which aspect of parenthood should take precedence in determination?
Why is legal parenthood important?
Bainham (1999): most fundamental relationship between parent and child
Parenthood is non alienable
Parenthood determines several things: eg. Incestuous relationships, inheritance, citizenship
Legal parenthood vs. Parental Responsibility
PR can be held by several persons ie. Relatives, local authority
Parenthood can only be held by 2 individuals at any one time
How to determine a child’s legal parents?
Inconsistent & ad-hoc approach by court
Which aspect of parenthood should be given priority?
Law has not always taken a consistent approach
Historically, law insists on one man and one woman
X, Y and Z v. UK: no violation of Art 8 to refuse to register female to male transsexual as father. Can still take on social parenthood Just because not recognising as father, does not affect family life, nothing stops from taking responsibilities, not needed to be registered can still call father
Decision seems to indicate that genetic component is given priority
Bainham: argues that genetic component should be given priority (adopted by Baroness Hale) only genetic can call parent legally, only thing can identified with certainty
Biological truth should reign supreme
It is genetics that make up the core of a human physical body- one thing can be trace is DNA, only aspect unchangeable
Biological truth vs. “fiction” of social parenthood- will step into who should be parent and to what degree, muddy s different standard but no one can argue with DNA
English Law currently has no clear priority
Natural Conception: favour biological truth
Assisted reproduction (official): pragmatic, somewhat policy based manner- sometimes genetic truth may not reign supreme
Legal adoption will clear out all ties with biological parents- in eyes of law will be stranger, adopted parents will be legal parents in all aspects, can only seek contact if over-18, parents no duty to tell child they are adopted but local authority have to keep record of adoption register- real life usually adopt children who have some idea ie. child in care usually 6 years old
Determining Legal Parenthood
Natural Conception
Mother: woman who carries and gives birth to child -gestational land genetic component
Father: Married or unmarried – depend on the status of mother
Married Father: common law presumption that husband of mother is child’s father – Ampthill Peerage Case – not presume woman commit adultery, rule of convenience
Presumption of Legitimacy But this presumption can be rebutted: S26 FLRA1969
But need some strong evidence – not rumours
Very detrimental to disrupt a child’s legitimate status- Presumption not always biological truth, will lead to social problem if started
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