Statutory provisions: the Human Fertilisation and Embryology Act 1990
Sarah Franklin provides a feminist anthropological analysis of the parliamentary debates on the Human Fertilisation and Embryology Bill, highlighting the authority of legal discourse in this respect. Franklin discusses the social construction of ‘natural’ facts in the context of kinship and legal parenthood. She argues:
The order of nature provides the basis or foundation for the order of law in the definition of kinship ties. True to the consistent attribution of privileged authority to clinical and scientific expertise throughout the debates, ‘natural facts’ . . . were seen to provide the neutral, impartial and objective facts of the matter upon which legislation should properly be based.
However, Franklin cautions that the invocation of ‘natural’ facts in the HFE Bill parliamentary debates is limited. At times, ‘natural’ facts are ‘displaced’, and at other junctures, ‘lost’. Franklin’s argument is exemplified by reference to the meaning ascribed to ‘mother’ in what would become s 27 Human Fertilisation Embryology Act 1990. She notes: ‘Here, the dilemma of assisted nature resides in the emergence of two “natural” mothers: the genetic and the birth mother. Who is the “real” mother? Nature cannot referee.’ With this legislation, the birth mother is designated the legal mother, and the significance of genetic links between mothers and children is marginalised. Hence, legal discourse is able to make claims of ‘truth’ with regard to the ascription of parenthood. Consequently, alternative constructions of ‘mother’ are disqualified for the purposes of legal status and rights in relation to the donor-conceived child.
With respect to the legal designation of the ‘father’ of donor-conceived children, Franklin states that:
[T]he authority of nature was simply abandoned. . . gamete donors’ . . . ‘natural’ parenthood was rendered legally unrecognisable. Likewise in granting to husbands of women recipients of donor insemination the right to register their name as father on the birth certificate, the law takes on new powers of conferring parental status.
HFEA 1990 s 28(2) authorises women’s husbands – who may or may not intend to become social fathers – to be entered as the ‘father’ on the child’s birth certificate.
Similarly, s 28(3) HFEA 1990 provides for unmarried male partners treated ‘together’ with the legal mother to be named ‘father’ on a donor-conceived child’s birth certificate. Hence, it is clear that Anglo-Welsh legal discourse may privilege a particular construction of the ‘father’ of a donor-conceived child. In so doing, genetic links between sperm donors and children are also disqualified as significant markers of parenthood. However, in light of the recent change in policy regarding donor anonymity it would seem that attitudes have subsequently shifted in this area. Nevertheless, no legal status or obligations will be provided for sperm (or egg or embryo) donors as a consequence of the removal of anonymity. Consequently, for the purposes of the legal ascription of parenthood of donor – conceived children, bio-genetic ties remain marginalised under the current legal provisions.
To argue simply that the law in such cases explicitly supersedes (or ‘assists’) in the social construction of natural facts to an unprecedented degree is not enough, since, by definition, a law designed to establish regulatory control over ‘human fertilisation and embryology’ could do little else.
It is conceded that the HFEA 1990 probably could do little else. However, it does not follow that the provisions of ss 27 and 28 HFEA 1990 were the only solution(s) to the complications of social and legal parenthood prompted by assisted reproductive technologies, nor that Anglo-Welsh law had necessarily to deal with the issues raised by these procedures in the ways that it did. As a consequence of s 28 HFEA 1990, social fathers (and their families) are clearly matched to their donor – conceived children, named as such on the child’s birth certificate, and can exercise parental responsibility (subject to s 4 Children Act 1989). In contrast, lesbian co-mothers are marginalised through a process of exclusion whereby they have no route to parental status. They cannot be named on the child’s birth certificate, their donor-conceived children are not legally matched to their wider families, nor are they automatically accorded parental responsibility. Therefore, it is clear that it is heterosexual parenthood which is privileged in Anglo-Welsh legal discourse. However, analysis of the legislation alone does not provide space for understanding its subjective impact upon persons undertaking donor insemination. In the next section, I seek to address this lacuna through the examination of the subjective significance of these legal provisions for some users of donor insemination, as reported in their interview accounts. The legal ascription of parenthood was an issue raised by all of my interviewees, some of whom stated that they had sought information about the legal status of each parent when donor insemination was used.