Alternative strategies for the recognition of a co-mother’s parental status
Consenting to insemination
Naming practices not only are significant within families, but can potentially provide external recognition of a co-mother’s parental role. Kate and Sarah discussed the strategy they used to provide the co-mother (Sarah) with a symbolic form of recognition of her intending parental role. They noted that, during the process of accessing donor insemination at a licensed clinic, Sarah signed the consent form usually signed by the male partner of a woman undertaking assisted reproductive technologies:
Sarah: Often they [clinic officials] don’t know how to treat the co-parent, like on
the form you sign they use the term husband for the partner.
Kate: For us they [clinic officials] crossed out ‘father’ and put ‘parent’. We were
both signing to say that Sarah also agreed to the treatment and also recognising Sarah as a parent. It was symbolic. It’s important for the child to know that it was a joint decision.
Signing the consent form is a transgressive practice, which means that subjects like Kate and Sarah are not passive in the process of ascribing parenthood. Rather, they are actively writing themselves into this process at the clinic. As outlined above, s 28(2) and (3) HFEA 1990 provides that when licensed donor insemination is used by heterosexual couples, the husband or male partner will be considered the child’s legal father unless he proves he did not consent to the treatment. Hence, husbands or male partners of women undertaking donor insemination are requested to sign an appropriate consent form. This is not ‘to make the treatment lawful’; rather it is to avoid any ‘evidential difficulty’ arising in relation to the ascription of the legal father for a resulting child.
Given the significance of the consent form for the legal determination of fatherhood, it is clear that Kate’s and Sarah’s practice of jointly signing this form is transgressive, challenging ‘the family’ norm. Kate’s comments suggest that they were aware that by signing this form, Sarah would not be ascribed legal parental status in relation to their donor-conceived child. However, it was clearly significant that Sarah be afforded some formal, symbolic recognition of her intention to parent. Hence, Kate’s and Sarah’s reported practice of signing this form indicates that they were able to mobilise and reconfigure legal consent in ways that ascribed a symbolic recognition of Sarah’s co-parenting role, and may be evidence of a form of local and strategic resistance to the dominant norms of consent associated with accessing and using licensed donor insemination. By using the existing legal framework, while at the same time reconfiguring it by having the term ‘parent’ inserted in the place of ‘father’, Kate and Sarah challenged the hetero-normative assumption associated with consent for licensed donor insemination. However, there are some limitations to their practice.
The use of the gender-neutral term ‘parent’ on the consent form is significant. It is not entirely clear who chose this term, as Kate’s comments suggest it was the clinic, rather than the couple themselves. If Kate and Sarah chose this term, it could be possible to argue that they can reconfigure the term ‘parent’ in a positive way. That is, as outlined above, ‘parent’ could be an example of lesbian couples’ reconfiguration of kinship terms in ways that challenge gendered hetero-normative assumptions about mothering and fathering and gender-appropriate parenting roles. However, use of the term ‘parent’ may also be evidence of law’s inability to comprehend a gendered parental status for Sarah, once Kate became a mother. Further, if it was the clinic’s choice of kinship term, it is possible to read the gender – neutral term ‘parent’ as providing a marginal status to subjects like Sarah. That is, those ‘parents’ who do not conform to ‘the family’ norm are excluded from claiming the identity ‘co-mother’ (or even ‘mother’) on the clinic’s consent form. Second, while this practice may provide a challenge to the assumption that only heterosexual couples using licensed donor insemination will sign the consent form for the purposes of eliminating evidential difficulties in relation to the legal ascription of parenthood, because this practice was informal and invisible, insofar as the consent form would not be acknowledged outside the clinic for the purposes of establishing parental status, its transgressive effect is reduced. However, there are two other formal legal provisions which lesbian co-mothers can seek to implement in (partial) recognition of their parental role: joint residence orders and guardianship. Guardianship is significant here insofar as it provides some appreciation of the legal power to designate, even if only after death, a status they have lived and experienced.