How might lesbian co-motherhood be accommodated under Anglo-Welsh law?
As the main focus of this chapter was the impact of the (lack of) legal ascription of parenthood for establishing familial status and kinship naming practices in lesbian and heterosexual families conceived by donation, there is insufficient scope to consider the proposed changes in detail. Rather, the following comments are intended to be illustrative of the legislative changes one might expect in order to provide co-mothers with access to the status of legal parenthood akin to that provided to unmarried social fathers when they undertake licensed donor insemination. I will address three possible changes: birth registration; allocation of parental responsibility; and consent provisions at licensed clinics. I begin with the most controversial proposal – amendments to the registration of a child’s birth. Providing co-mothers with legal parenthood would necessitate changes to ensure that they could be registered as a parent on the child’s birth certificate. The kinship terminology used could prove problematic given the lack of consensus on the appropriate term used to refer to ‘co-mothers’, as outlined in the introduction. Nevertheless, it is proposed that the terms ‘parent’ or ‘co-parent’ might prove least contentious, given the anecdotal evidence discussed earlier in the chapter.
Changes to the allocation of parental responsibility could follow the recent model under s 111 Adoption and Children Act 2002, amending s 4 Children Act 1989 to provide automatic parental responsibility for unmarried fathers upon joint registration with the mother. As outlined above, lesbian couples have successfully applied for joint residence orders, thereby providing the co-mother with parental responsibility for the duration of the order. However, automatic allocation upon joint registration with the mother would remove discrimination on the basis of sexual orientation. Finally, to avoid any evidentiary issues with regard to the legal ascription of parenthood, co-mothers could be required to sign consent forms at licensed clinics to signal their intention to create a legal relationship with the donor-conceived child (as per Kate’s and Sarah’s account above). This approach is adopted in s 6A Artificial Conception Act 1985 of Western Australia for lesbian women in de facto relationships, and could arguably provide a model for Anglo-Welsh law to follow.
This chapter has considered the legal ascription of parenthood in the context of licensed donor insemination and, in particular, the subjective impact of the current provisions on naming practices in British families conceived through donation. Anglo-Welsh legal discourse has (unsurprisingly) framed parenthood through a hetero-normative lens, whereby social fathers are matched to donor-conceived children while concurrently lesbian co-mothers are marginalised through a process of exclusion. This has caused difficulties in terms of their legal status as parents and of their subjective negotiations of their social status as parents, including their naming practices. It has been argued that the kinship terminology used within their families and at licensed clinics concurrently indicates the normative effects of, and the strategic resistance to, their lack of legal status. In particular, the democratic naming processes undertaken by the interviewees suggest that ‘parenthood’ can be a transgressive term, providing a readily identifiable status and relationship to the child, but also that, in some cases, ‘parent’ is still less than transformative because of the set of legal norms that obscure the possibility in law of co-mothers. In response to the limited and precarious legal recognition of co-mothers’ parental roles through joint residence orders or guardianships provisions, in the concluding section, consideration was undertaken of possible ways of altering access to legal parenthood. Given the symbolic importance of the legal ascription of parenthood highlighted in all (lesbian and heterosexual) interviewees’ accounts, access to this legal status is crucial, not only on grounds of equality and non-discrimination, but also because of the concurrent practical and subjective significance it has to family life and the day-to-day care of children.
I would like to extend my deepest gratitude to the women and men I interviewed, and to Lisa Saffron (and others who remain anonymous) for introductions made on my behalf during the research process. I would also like to thank Alison
Diduck, Katherine O’Donovan, Jonathan Montgomery, Leonora Onaran, and the participants at the Cavendish-sponsored contributors’ workshop for their insightful observations. This chapter was also presented as a staff seminar at the School of Law, University of Southampton, and I am indebted to my colleagues for their comments and support. I am also grateful to Roger Errington for information pertaining to the adoption regulations; and to Maureen McNeil and Julie Wallbank for their remarks on an earlier version of this chapter. This research was funded by an ESRC PhD studentship (Ref: R00429834811).