Is ‘parenthood’ considered an appropriate status to reflect the role of co-mothers?
This question is more problematic, because of the ongoing debate between legal commentators as to the relative weight to be attached to genetic parentage, the intention to parent, or the ongoing care provided for a child, when ascribing legal parenthood. In the context of assisted reproductive technologies, the genetic and intention models of parenthood have dominated the discussion; therefore I will focus on them. Put simply, if genetic ties determined legal parenthood, only persons with a genetic relationship with a particular child would be legally recognised as her parents. Clearly, a co-mother would not be able to substantiate such a link. Given the increasing significance ascribed to the child’s right to know her genetic origins, the focus on the genetic model is unsurprising. However, as Bainham concedes, as this is not the model followed in Anglo-Welsh law, it is ‘too late to change course now’. Hence, the co-mother’s lack of genetic relationship to a donor-conceived child should not completely undermine her potential claim to legal parenthood.
Could the intention model provide a means for co-mothers to gain legal parenthood? As the name suggests, the intention model ascribes legal parenthood in favour of a person only where that person intends to be a parent. It is not without its criticisms, particularly on the construction of ‘intent’ in circumstances where contraception may have failed, among other examples. However, as Jonathan Herring notes, in the context of assisted reproductive technologies, the intention to be (or in the case of sperm donors not to be) a parent is ‘crucial’ to the determination of parenthood, although, as Rebecca Probert points out, this intention ‘has to be combined with some action to bring about a birth’.
For the purposes of legal recognition under s 28(3) HFEA 1990, the action required of an unmarried male partner is to undertake treatment ‘together’ with a woman at a licensed clinic. A co-mother’s actions in attending a clinic with her partner, as the lesbian couples I interviewed reported they did, do not differ from those of a male partner, yet no legal status follows from their intention and concurrent action.
Clearly, there are policy reasons for the absence of legal status accorded to these women. First, lesbian families conceived through donation do not promote ‘the family’ norm, hence there is little impetus (legislatively or judicially) to provide legal recognition in the absence of the traditional markers of parenthood. This clearly evidences Haimes’s argument regarding the social management of families that ‘transgress’ traditional or ‘assumed’ familial forms. However, the continued potency of ‘the family’ norm, notwithstanding the fact that a decreasing number of persons ‘experience’ this form of family, has been subject to sustained criticism by feminist legal commentators. I would argue that it is poor justification for the continued discrimination of co-mothers on the basis of their gender and sexual orientation. Second, as Probert notes, recognising the status of the co-mother on the child’s birth certificate would prove problematic to the promotion of birth registration as a record of ‘historical truth’. However, in light of the provisions of s 27 and s 28 HFEA 1990, it is difficult to sustain the argument that birth certificates record the ‘truth’ of a child’s genetic parentage. Nevertheless this policy issue could, as Probert suggests, prove problematic judicially if one were to seek to challenge the current provisions on the basis of discrimination on the grounds of sexual orientation. I submit that legal parenthood is an appropriate status for lesbian co-mothers, and that the policy considerations outlined above provide no basis for the continued discrimination against these women. Further, legal parenthood would validate that which they have been doing in their families, and more accurately reflect their commitments to their children and to the relationships they have constructed with their children. While judicial resistance to such a challenge to the status quo seems to be ebbing, the extent of the requisite attendant changes and the need to ensure procedural fairness dictate that legislative changes would be necessary.