Parents in Law: Subjective Impacts and Status Implications around the Use of Licensed Donor Insemination
The difference with donor insemination is you will never be the same again. . . You will never ever be back in the mainstream in totality, and it changes everything forever. Whereas IVF is a temporary deviation down the route to creating your own family and carrying off into the sunset.
Claire’s comment reflects the assumption that most families have a genetic link between parents and their children and indicates her concurrent anxiety about the use of this procedure with her partner Neil. Claire suggests that there is a distinction between heterosexual couples who utilise IVF (crucially when the sperm and ova of the intending parents are used) to create their own family, and others who use donor insemination to create families who do not conform to this norm. In construing IVF as a temporary deviation in creating a family of one’s own, Claire’s comment is an acknowledgment of the pervasiveness of ‘the family’ norm in late twentieth-century British society, where bio-genetic relatedness provides the basis for familial relations. Bio-genetic relatedness may be actual – that is, genetic – or assumed, on the basis of the relationship between the parents, whether socially or for the purpose of establishing legal parenthood. However, Claire suggests that, when using donor insemination, heterosexual couples cannot simply ‘carry off into the sunset’. Rather, this procedure disrupts the bio-genetic link between social fathers and their children. Hence, bio-genetic ties are no longer taken for granted, but must be managed or negotiated.
The ‘need’ for the management of donor-conceived family ties has been noted in academic commentaries on kinship and the legal regulation of assisted reproduction. For example, Erica Haimes argues that the ‘transgression of assumed familial forms’ (ie, the absence of a bio-genetic link between parent(s) and children
in families conceived through donation) requires social management. While Haimes’s focus is on the anonymity of gamete donors rather than naming practices per se, she is clear that: ‘The nature of that [social] management is highly significant since it reflects and affects the way a society thinks about individuals, parents, children and families.’ In the context of Haimes’s discussion, donor anonymity is perceived as a regulatory mechanism which can simultaneously facilitate families with children conceived by donation to pass as ‘the family’ whilst arguably protecting the best interests of the child and the donor. Hence, the practice of donor anonymity both mirrors and reinforces the ‘problematic’ status of transgressive donor-conceived families.  The focus of this chapter, however, is the significance of the legal ascription of parenthood, in the context of donor insemination, as a mechanism of the social management of family formation. Identifying a particular person as a legal parent, or excluding another from parental status, can clearly both affect and reflect societal attitudes to parenting and transgressive familial forms; hence Haimes’s comments remain salient in this
The focus of my discussion is the impact of the legal ascription of parenthood upon establishing familial status and associated kinship naming practices in both lesbian and heterosexual families with children conceived by donation.93 I begin by considering the authority of legal discourse to confer parenthood when licensed donor insemination is used. Hence, I examine some of the ways in which Anglo – Welsh discourse ‘matches’, for the purposes of legal parenthood, social fathers to donor-conceived children and yet denies similar status to co-mothers. It is important to note the terminology used here. The kinship terms used to refer to a mother’s lesbian partner who also shares a parenting role in a particular child’s life have been discussed by a number of feminist commentators. Where donor insemination is used, the terminology is particularly significant, as the co-mother is not replacing another parent (ie biological or social father). I have elected to use ‘co-mother’ rather than ‘co-parent’ to highlight the issue of gender, concurrently rendering visible the role of these women and highlighting the way in which Anglo-Welsh legal discourse has tended to marginalise them through a process of exclusion.
I then consider the interview accounts of four lesbian couples and two heterosexual couples who had undertaken donor insemination at licensed British clinics in the 1990s. An analysis of their accounts facilitates an understanding of the subjective impact of the legal ascription of parenthood (or lack thereof) for some persons using donor insemination to create their families. An examination of my interviewees’ comments regarding the legal status of the (male or female) co-parent and the kinship terminology they use within their families demonstrates the normative effects of, and strategic resistance to, the (lack of) legal recognition for a particular parent. A clear distinction is drawn between one form of legal recognition – the statutory requirements regarding the registration of a child’s birth – and its subjective effects, including the democratic processes of kinship naming practices undertaken within lesbian families by donation in different contexts (including within their families, at a licensed clinic and at a doctor’s surgery). The latter practices, it is argued, are particularly revealing with regard to ‘status’ concerns for families that transgress assumed familial forms. These status implications raised in my interviewees’ accounts pose three interrelated questions: the first is whether Anglo-Welsh family law has the necessary mechanisms for recognising the parental role of co-mothers; the second is whether the legal concept of ‘parenthood’ is even an appropriate status to reflect the role of co-mothers; and the third is the way in which lesbian (co-)motherhood might be accommodated under the current law relating to parenthood.