What is a parent? It’s one of those deceptively simple questions, and it isn’t getting any easier. The High Court this week had to grapple with one of the many curly dilemmas presented by our ever-expanding universe of relational possibilities.
The specific problem at hand was to determine whether a particular sperm donor has parental rights under Australian law. In answering that with a yes, the court clarified some issues and left some others in an unfortunately uncertain state.
In 2006, a man voluntarily provided his semen to his female friend, and she used it for artificial insemination. At the time, the man believed that he was going to be the child’s father in the sense that he would be closely involved in her life and provide care and support to her. He was included on the birth certificate and has “an extremely close and secure attachment relationship with the child”.
As events transpired, when the child was nine, the mother and her female partner (who hadn’t been in the picture at the time of conception) decided to move to New Zealand. The father went to the Family Court to try to stop this, get shared parental responsibility orders and obtain a raft of other orders governing shared custody. Pretty standard for a Family Court dispute, apart from the threshold question of whether he was, as a matter of law, the child’s parent at all.
The law has come a long way since the UK Parliament first legislated in 1839 to allow a mother the right to ask a court for custody of her children under the age of seven (prior to that, they were automatically the father’s property). The principle that the first priority is what is in the best interests of the child came in 1873.
No-fault divorce brought custody and maintenance to the fore as major social issues, as the idea of complex parental relationships became unexceptional. Still, until relatively recent times, this all existed in the comfortable context of biological singularity: sperm = dad; ovum = mum.
Now, there are no safe assumptions, although some do linger on — including the notion that each child can only have two parents. The Family Law Act (FLA) still insists “that children have the benefit of both of their parents having a meaningful involvement in their lives”, definitely suggesting that the upper parental limit remains set at two.
That rather old-fashioned notion is causing a lot of trouble because even the biological reality, let alone the social context, doesn’t comfortably support it. Take the case of a donated sperm, used to fertilise a donated egg, then implanted in a third person’s uterus. It’d be hard to say that any of those three people has more or less of a claim to parenthood at a physical level, but the law insists on trying to decide for them.
The High Court has now clarified that, while the FLA makes some specific rules about who is or isn’t a parent of a child, those rules add to the range of parenthood rather than limit it.
One thing the FLA says is that, in a case of sperm donation, if the mother has a partner at the time and everyone consents to the conception, then the sperm donor is not a parent. However, in this case, the mother’s partner didn’t come along until later. No legislative presumption applied, and the question of whether the father was legally a parent had to be determined according to the “natural meaning” of parent. In other words, it’s going to be a case-by-case approach.
For sperm donors, this may be good or bad news depending on whether they want to be a legal parent or not, but it certainly opens up a much wider possibility for them to seek involvement in the life of a child born from their donation, later on and perhaps after a change of mind. For mothers and their (non-biological parent) partners, the uncertainty that this decision unlocks is quite profound.
Obviously, the people most affected are same-sex couples. The law is attempting to adapt to the equality of same-sex marriages and de facto relationships; but, at the same time, it has to contend with biological matters and some questions with no correct answer. Among them: what is the legal status of a sperm?
Illustrating the difficulty is the state of the law in the UK: if you donate sperm there through a licensed clinic, you will not be the legal parent of the child; however, if you donate privately, then you will be the legal parent. Pretty bright line for a very blurry distinction.
Inevitably, we’re going to have to face up to a much bigger conversation here, accepting that parenthood is a subjective, social concept, not a scientific fact. And, as a consequence, that the variety of familial relationships to which we extend the recognition and protection of the law will, by necessity, continue to grow. The nuclear family is already a historical artefact.
It sounds like it will be an even bigger issue at the childrens end-of-life events for their siblings Will contesting events.
I note the “ever-expanding universe of relational possibilities” is a good match for the image of the little preggo tummy. Nice.
“No-fault” divorce was the beginning of the end for the family unit, be it nuclear, extended or otherwise. The legal implications go further, since the courts actively assist the violator. Either partner can walk out of a relationship on a whim and receive equal treatment from the courts while leaving in it’s wake a trail of dysfunctional families – if you accept that the family unit is microcosmic to the well-being of a nation.
“No fault” did not really remove fault, therefore, it simply allowed judges to redefine it however they pleased.
Today, feminist operatives employ similar strategies to encourage divorce worldwide, often inserting it unnoticed and unopposed into programs for “human rights,” and unilateral divorce is now one of the first measures implemented by leftist governments. Note, that it is also an income-stream that feeds the Judiciary which I am sure was a point not lost on Lionel Murphy.
The damage done by family breakdown—especially to children—is now so well-known that it hardly needs mentioning.
You omitted the scare quotes around feminist operatives – do they wear black capes with pointed hoods and wield round, black bombs with sputtering wicks?
You wouldn’t be a Fathers4Fukwittery operative would you?
One of those people who claim, against all historical evidence, a biological necessity for impregnator dominance?
My parents finally separated in my teens. Life was suddenly calmer, more predictable and absent of continual angst and bickering. Life really looked up.
I still think things mostly work out best for all family members when parents get along well enough not to divorce. I think most married people with children think so too. Feminism has its good and bad like all the other isms. It’s silly to blame it for couples growing apart.
It’s nonsensical to assert that “the nuclear family is an historical artefact”.
Progressives (of which i am one) must stop behaving like it’s a zero sum game.
That society today more explicitly recognises families in all their myriad forms doesn’t relegate a traditional heterosexual family structure to the dustbin of history.
Equally, acknowledging the prevalence of nuclear family structures doesn’t nullify/minimise/erase the existence of any other family structure.
Attempts to remake the world to fit any ideology is doomed to fail. Advocate basic humanism instead.
Margo, The damage done by dysfunctional families who chose or are forced to stay together is worth more than a mention. The term “family breakdown” used as a pejorative does not acknowledge the greater good that can come from people being able to separate and rebuild their lives. No fault divorce is a civilised attempt to help this process. The fact that the family law courts meant to facilitate the process have been underfunded and starved for resources has been a political decision. This doesn’t mean it isn’t a humane and good idea.
For goodness sake!
This case was determined on its merits and should stand as reminder of what a father is and does versus what a sperm donor is.
A father, whether married to or not in a permanent relationship with the mother , on the continuum of relationships , maintains contact with the child to the best of his ability. Hopefully he also provides some material and emotional support to the child.
A sperm donor provides sperm so that a woman can bear her child. That’s it!
I didn’t think it was a difficult differentiation, however, I know divorced mothers who receive no help in raising a family and their children also receive no ongoing emotional support or love. I have heard her refer to her ex-husband as “the sperm donor”, and I am almost in agreement with her.