The subject constructed in the Court of Appeal
There are several levels at which the court decisions above can be interrogated. On a technical level, the decisions of the social services and court authorities on how to proceed, and even on how to frame the questions, were not inevitable. The woman’s placement of the infant for adoption could have been handled differently. However, it is the language used in the Court of Appeal and the image of the woman concerned, and of ‘appropriate behaviour’, that is of interest here.
Having disposed of the woman’s plea for confidentiality in birthgiving, Thorpe LJ explained ‘the consequences’:
There is a human tendency, which we all recognise, to escape the consequences of our errors and shames. The mental search for an escape route is necessarily egocentric and often inspired by fantasies. The appellant’s success in giving birth to her daughter without the knowledge of her husband and her other children is surprising, leaving aside any comments on her responsibility and candour.
The ‘responsible subject’, it seems, will face up to her errors and shames and be caring rather than egocentric. Yet, when we examine this in terms of the woman’s story, it may be that her idea of responsibility is to place her child for adoption in confidence. The choices constructed in liberal discourse are linked to responsibility, but views of the content of responsibility may differ. Such views and decisions following therefrom may be conditioned by context and identity. If some form of self-determination is allowed to subjects, then the notion of choice posits various possibilities for decision. It seems, however, that ‘wrong’ or inauthentic choices may open a space for state intervention. The trouble with the notion of ‘wrong’ is that the next questions are ‘wrong for whom?’ and ‘by what standards?’
The concealment of the care and adoption proceedings, as wished for by the birthgiver, ‘was never a realistic conception’, according to the appeal judge who supported this observation with a reference to ‘the responsibilities of public authority, the rights of the child, the rights of the husband and the rights of her other children’. There was no reference to the rights of the woman herself. She is depicted as a fantasist, who has failed to encounter reality and truth. The outcome was that the husband ‘must be served with the proceedings’. Realistic or not, the
option of confidentiality, or ‘concealment’, is recognised in other jurisdictions of
the European Union, a point which will be developed below. In English law,
however, the subject who has recently given birth has no right to ask for privacy.
The final note struck by the appeal judge is one of hope, or possibly fantasy:
The local authority must provide professional support in breaking the news to the family and in managing its aftermath. I say ‘must’ because from the point of view of the child in the case everything turns on how that process is managed. Obviously a possibility is that the encounter with reality and truth will lead to an outcome very different from that which the mother suggested to the judge. A possible outcome is that this little girl may never need an adoptive placement and that is a possibility which needs to be explored as a matter of great urgency.
In a sense, the court disposes of the issue by reference to the rights of others. We are not suggesting that the normative language of rights can always be validated in relation to anonymous birthgiving. As noted above, the rights of the child, husband and other children are relevant considerations and may have to be balanced against a right of privacy claimed by a woman. However, as one who has fulfilled the first part of birthing labour, in gestating and bringing a child safely forth, her preferences deserve more respect than that accorded by either court. Rights discourse often turns into discussions of priorities and proportionality, with ‘a rhetorical reference to responsibility being set up in opposition to rights’.
Giving birth is positioned in the United Kingdom as a public act. A new person enters the world, her arrival must be documented in a birth certificate, showing the name of the woman who gave birth, who is the legal mother, regardless of whether she is the genetic parent. The only recourse of a birthgiver who does not want to be identified is to give birth in secret and to abandon the child, committing at least one crime. Estimates of the frequency of such actions in England and Wales vary, but an educated guess is about one hundred a year. Concealment of parturition from a husband or family does not necessarily involve concealment of identity from the child, who, if adopted will have access to her original birth certificate at the age of 18. However, an abandoned child whose birthgiver disappears will not have the mother’s name on the birth certificate. Most of the debate on abandonment has taken place around the question of the child’s identity rights, with little focus on the birthgiver, for the obvious reason that her identity is unknown. There remain a small number of European countries, however, where a different view prevails, as shown in a recent case before the European Court of Human Rights.