1. INTRODUCCIÓN
1.1. Obesidad
1.1.7. Pautas de tratamiento de la obesidad
1.1.7.1. Plan de alimentación
The aim of this section is to situate the current study in relation to existing doctrinal, theoretical and empirical socio-legal scholarship that may be relevant. Importantly, this section does not attempt to summarise the current state of knowledge of family studies/law and policy as it relates to same-sex parenting. Such a task would certainly be beyond the scope of this thesis.25 Instead, I treat this section as an opportunity to ‘claim, locate and defend’26 my overall thesis while critiquing and entering into a dialogue with existing research.
25 For a recent overview of the law relating to same-sex parenting see Anthony Hayden, Marisa Allman, Sarah Greenan, Elina Nhinda-Latvio, and Jai Penna, Children and Same Sex Families
A Legal Handbook (Jordan Publishing 2012) For a recent discussion of same-sex parenting
from a family studies/family sociology perspective see Stephen Hicks, Lesbian, Gay and Queer
Parenting: Families, Intimacies, Genealogies (Palgrave Macmillan 2011)
31
Legal Context in Brief
As gay and lesbian planned co-parenting arrangements generally involve assisted reproduction, the UK Human Fertilisation and Embryology Act 200827 is a key piece of legislation in terms of determining legal parenthood. Part Two of HFEA 2008 allows two female partners to be automatically recognised as the legal parents of a child, born through artificial conception, from birth.28 Mr Justice Baker, sitting in the High Court observed in a recent case that parliament’s intention in enacting this legislative reform was ‘to put lesbian couples and their children in exactly the same legal position as other types of parent and children.’29 While recognising the progressive nature of some aspects of the reforms, a number of commentators have remarked on their limited scope, given that they do not apply to female couples conceiving at home unless they are in a civil partnership/same-sex marriage and, what is more, they do not countenance the legal recognition of the biological father alongside the female couple.30 This stands in contrast to Part Three of the BC Family Law Act 2011 which does not make legal recognition dependent on the existence of a formal partnership and also allows for the legal recognition of the biological father as a parent alongside the female couple, provided all parties agree.31
In terms of male-led families, neither the E&W provisions nor those in BC allow for the automatic recognition of two men as the sole parents of a child because
27 Hereafter referred to as HFEA 2008. For a more detailed discussion of the UK legislative context see page 96.
28 Human Fertilisation and Embryology Act 2008 ss. 42 – 44. 29 Re G (A Minor); Re Z (A Minor) [2013] EWHC 134 (Fam) [114].
30 Julie Wallbank, ‘Channelling the Messiness of Diverse Family Lives: Resisting the Calls to Order and De-Centring the Hetero-Normative Family’ (2010) 32 Journal of Social Welfare and Family Law 353, 354; Julie McCandless and Sally Sheldon, ‘The Human Fertilisation and Embryology Act (2008) and the Tenacity of the Sexual Family’ (2010) 73 Modern Law Review 175, 191.
32 the gestational mother is always considered to be one of the child’s parents on birth. However, section 54 of the HFEA 2008 allows male partners, who are either civil-partnered/married or living in an ‘enduring family relationship’ and one partner is the child’s biological father, to apply for a parental order, between six weeks and six months after birth, making them and not the gestational mother (provided she consents) the legal parents. However, as with women-led families, it is not possible for the gestational mother to remain an additional parent. By contrast, it is possible under the BC Family Law Act 2011 for the gestational mother to remain as a third parent or have the two men as the sole parents, provided there is an agreement prior to conception and another one after birth.
This divergence of approach in different jurisdictions makes it particularly unsatisfactory that issues surrounding who should be recognised as a parent were not fully considered in the UK reform process. The approach in E&W evidences a heteronormative dyadic model that underpins the legislation and excludes families that do not conform to the dominant and legally privileged two- parent model based on a formalised, sexually intimate union. As Wallbank puts it, ‘mimicry of the legally sanctioned heterosexual two-parent family is rewarded’.32 This has the implicit effect of delegitimising families that do not conform because, as Pickford notes, ‘it is not possible to favour one particular form of family without undermining others'.33
32 Wallbank, ‘Channelling the Messiness of Diverse Family Lives: Resisting the Calls to Order and De-Centring the Hetero-Normative Family’ (n 29) 354.
33 Ros Pickford, ‘Unmarried Fathers and the Law’ in Andrew Bainham and others (eds), What is
33
Situating the Study’s Theoretical Focus
Recent critiques of same-sex marriage have focused on the tension between formal equality, which in many jurisdictions has resulted in the opening up of marriage to same-sex couples, and substantive equality, which suggests a marriage regime that is more sensitive to the different needs of same-sex couples might be more appropriate.34 This argument has also been extended to the legal recognition of parent-child relationships within same-sex families. As Boyd argues:
Family law generally, and laws on parenthood in particular, have moved over the past three decades towards enhancing the formal legal equality of mothers and fathers. This trend, while reflecting important initiatives to undermine the sexual division of labour and to encourage engaged fatherhood, has had unintended consequences for mothers who take primary responsibility for the care of their children, for same sex partners who wish to co-parent, and for women who attempt to parent autonomously of a genetic father.35
Of particular interest in this study is the fact that, despite considerable progress having been made, the legal recognition of parenthood ‘remains wedded to the problematic aspects of the sexual family’36 and, what has been termed, ‘parental dimorphism’37. Monk argues for the need to ‘draw attention to potentially “hidden stories” of contemporary gay and lesbian connections with children within legal frameworks premised on equality’ as ‘[these] experiences take place outside of
34 Robert Leckey, ‘Must equal mean identical? Same-sex couples and marriage’ (2014) 10 International Journal of Law in Context 5–25.
35 Susan B Boyd, ‘Equality: An Uncomfortable Fit in Parenting Law’ in Robert Leckey (ed), After
legal equality: family, sex, kinship (Routledge 2014) 55.
36 Ibid.
37 Parent dimorphism refers to the fact a child can only legally have one mother and either one father or one second female parent. See Julie McCandless and Sally Sheldon, “The Human Fertilisation and Embryology Act (2008) and the Tenacity of the Sexual Family” (2010) 73 Modern Law Review 175, 188.
34 statutory reform agendas and litigation strategies’.38 Given that legal recognition may be lagging behind social practices, therefore, it is important to identify whether the legal framework does justice to the family members involved. Building on Monk’s call for increased scrutiny of these legal frameworks, this thesis aims to draw out the narratives of those involved in gay and lesbian collaborative co-parenting arrangements, as an example of the type of contemporary connections with children that he describes. The legal frameworks are viewed through a theoretical lens drawing on the diversity model of parenthood,39 which challenges the idea that legal equality means assimilating same-sex families on the basis of heteronormative standards. The original combination of this theoretical framework, which is discussed further in a subsequent section,40 and qualitative data on the experiences of gay and lesbian collaborative co-parenting families in two jurisdictions, provides a strong basis for critiquing legislative and judicial approaches to parenting structures that challenge current normative assumptions.
The significance of this project lies in the fact that it is important, from children’s and adults’ point of view, that the law has a settled understanding of who a child’s parents are. Therefore, it is important to explicitly consider the nascent collaborative co-parenting family form in order to determine how to appropriately recognise potentially competing claims to parenthood. In addition to this, previous research has largely considered collaborative co-parenting only incidentally as
38 Daniel Monk, ‘Sexuality and Children Post-Equality’ in Robert Leckey (ed), After legal equality:
family, sex, kinship (Routledge 2014) 201.
39 McClain (n 22). 40 See page 4752.
35 part of a focus on lesbian parenting.41 The current project fills a gap in the research through its sustained focus on a broader range of collaborative co- parenting families and explicit consideration of how gay men are positioned in relation to parenthood and parenting. It encompasses not only lesbians’ and female couples’ perspectives but also the perspectives of gay men and male couples who are involved in collaborative co-parenting and are underrepresented in the research, as Chapter Seven indicates.
Socially Locating the Research
When discussing same-sex families, it is important to consider what we mean by family because it is such a ubiquitous term. Family values are said to underpin our society; family law purports to regulate our intimate relationships with others; and family studies tries to explain and understand the way we order our intimate and personal lives. An awareness of how same-sex partners engage in family life has seeped into the public consciousness through US TV shows such as Brothers
and Sisters,42 The New Normal43 and Modern Family44 as well as plotlines
portraying same-sex relationships in British soaps such as Coronation Street,45 Emmerdale46 and Hollyoaks.47 Despite this, there is still some reluctance to recognise same-sex partners (with or without children) as being families.
41 See for example Gillian Dunne, ‘Opting into Motherhood: Lesbians Blurring the Boundaries and Transforming the Meaning of Parenthood and Kinship’ (2000) 14 Gender & Society 11; Leanne Smith, ‘Is Three a Crowd: Lesbian Mothers’ Perspectives on Parental Status in Law’ (2006) 18 Child and Family Law Quarterly 231; Fiona J Kelly, Transforming Law’s Family the
Legal Recognition of Planned Lesbian Motherhood (UBC Press 2011)..
42 Jon Robin Baitz [Creator] Brothers & Sisters (ABC Network 2006 – 2011).
43 Ali Adler, Ryan Murphy and Katherine Shaffer [Creators] The New Normal (NBC Network
2012 – 2013).
44 Steven Levitan and Christopher Lloyd [Creators] Modern Family (ABC Network 2009 –
Present).
45 Tony Warren [Creator] Coronation Street (ITV 1960 – Present). 46 Kevin Laffan [Creator] Emmerdale (ITV 1972 – Present). 47 Phil Redmond [Creator] Hollyoaks (Channel 4 1995 – Present).
36 This thesis focuses on families that are created within the LGBTQ community as contrasted with the traditional nuclear family, which consists of a married heterosexual couple and children. These families may differ from the traditional family in that they do not necessarily involve a formalised legal union, may involve a limited degree of cohabitation and may include members who have been chosen to be part of the family and who are not traditionally considered as such.48 The families that exist within the LGBTQ community are not homogenous. Therefore, a one-size-fits-all approach might fail to appreciate the varying needs of different families. As a result, this thesis challenges the apparent heteronormative ordering of LGBTQ families that seems to underpin the legal framework in the majority of jurisdictions.
The law’s response to same-sex families, although highly relevant in itself, also raises broader questions within family law and policy about the meaning of family and how the law should regulate the way people structure their personal/intimate lives. In arguing for greater legal recognition of these families, therefore, the thesis discusses the implications of this on the legal regulation of gay and lesbian parenting and family life more generally (RQ 3). In particular the thesis advances the argument that the law continues to embody heteronormative assumptions, which fail to do justice to the lived experiences of a growing number of families that challenge normative expectations.
Law does not exist in a vacuum but operates within a given social context that comprises governmental and social policy as well as societal attitudes. Therefore, when discussing legal reform in relation to alternative families, it is necessary to
48 See Kath Weston, Families We Choose: Lesbians, Gays, Kinship (Columbia University Press
1991); Jeffrey Weeks, Brian Heaphy and Catherine Donovan, Same Sex Intimacies: Families of
37 at least acknowledge the views of society and the policy orientation of Government towards these issues. Same-sex couples openly having children is more common nowadays than it has been in the past, with a number of high profile (and less high profile)49 cases being reported in the media.50 There is also considerably more support in society at large for same-sex parenting than there has been in the past.51 However, the view continues to exist in some quarters (perhaps to a more extreme degree in the US than the UK)52 that the traditional nuclear family is the most suitable environment for raising children and, therefore, same-sex couples should not have children.53 This view persists despite the widespread reporting in the media of studies that appear to contradict it.54 There are even suggestions that proponents of this view have drawn on methodologically unsound studies in an attempt to support their opinion.55 The view that same-sex parenting is inferior to different-sex parenting emanates not only from religious groups56 but also within the LGBTQ community itself.57
49 Shekhar Bhatia, ‘India surrogacy industry: we could never have imagined we’d be parents’
The Sunday Telegraph (26 May 2012).
50 Angela Pertusini, ‘Pioneering gay fathers set up advice service on surrogacy’ The Times (1 January 2011).
51 A Park, C Bryson, E Clery, J Curtice, and M Phillips, ‘British Social Attitudes : the 30th Report’, (NatCen Social Research 2013) ix. Steve Doughty, ‘Gays Make Fine Parents Says Barnardo's Boss’ Daily Mail (London, 31 January 2011).
52 Walter Olson, ‘The New Campaign Against Gay Parenting’ Huffington Post (10 August 2012)
<http://www.huffingtonpost.com/walter-olson/gay-parenting_b_1758633.html> accessed 8 August 2015.
53 Letters, ‘We Should Be Protecting Children Not Gay Parents’ The Sunday Times (18 July 2010).
54 Shahesta Shaitly, ‘Lesbian Mothers: My Two Mums’ The Observer (12 December 2010).
55 Stephanie Pappas, ‘Gay Parents Study Suggesting Downside For Kids Draws Fire From
Social Scientists’ Huffington Post (6 December 2012)
<http://www.huffingtonpost.com/2012/06/12/gay-parents-study-kids-social- scientists_n_1589177.html> accessed 8 August 2015.
56 Riazat Butt, ‘Bishop hits out at adoption agency over gay couples rule’ The Guardian (21 December 2008) <http://www.guardian.co.uk/world/2008/dec/21/catholicism-gay-
rights?INTCMP=SRCH> accessed 8 August 2015.
57 Rupert Everett, ‘There’s Nothing Worse Than Gay Parents’ The Telegraph (16 September
2012) <http://www.telegraph.co.uk/relationships/9546091/Rupert-Everett-Theres-nothing-worse- than-gay-parents.html> accessed 8 August 2015.
38 The polarisation of views in relation to same-sex parenting needs to be understood in the context of the broader societal response to alternative families and in particular in relation to the gay marriage debate. Alongside the increasing recognition of same-sex unions between adults,58 in E&W and other jurisdictions around the world, same-sex parenting is becoming more visible and increasingly recognised.59 Gradually, legislators and courts in various countries are making progress towards facilitating the creation of same-sex families and recognising the parent-child relationships in these families.
At the time of the passage of the Civil Partnership Act 2004, society's acceptance of such relationships was still quite tentative.60 Since then, there have been some considerable advances in the promotion of same-sex relationships, not least of which has been the introduction of same-sex marriage in E&W, and even the legal recognition of same-sex parenting. Now in E&W same-sex couples are able to foster and adopt,61 female couples can be automatically recognised as the parents of a child born through artificial conception,62 and male couples can be declared the parents of a child born through surrogacy shortly after the birth provided the birth mother consents.63 Much of this advancement has been made through legislative reform, some of which has actually led the way in terms of social attitudes. Despite this progress, the legislative framework continues to
58 See for example Katharina Boele-Woelki and Angelika Fuchs (eds), Legal Recognition of
Same-Sex Relationships in Europe: National, Cross-border and European Perspectives
(Intersentia 2012).
59 See for example David Hill, ‘The Recognition of Homosexual Parents in the United Kingdom’
in Katharina Boele-Woelki and Tone Sverdrup (eds), European Challenges in Contemporary
Family Law (Intersentia 2008).
60 See the discussion of the parliamentary debates that led to the passage of the Civil Partnership Act in Carl Stychin, ‘Not (Quite) A Horse And Carriage’ (2006) 14 Feminist Legal Studies 79, 80-81.
61 Adoption and Children Act 2002, s.144 (4).
62 Human Fertilisation and Embryology Act 2008 ss.42-44. 63 Ibid. s.54.
39 automatically assume a heteronormative approach, which may not appropriately recognise the relationships that exist in collaborative co-parenting arrangements.
Research Context
This research is being conducted against the background of dramatic changes in family life and family law over many years. These changes have been extensively documented and discussed elsewhere.64 Therefore, it is not necessary to rehearse them in full here. Instead this section intends to highlight some of the key developments in our thinking about family life and family law that are particularly pertinent for this study. After discussing some general ideas from family sociology and family law scholarship, this section narrows the focus to the recognition of men’s involvement in the reproductive process and how we recognise family diversity, each of which are important considerations in the recognition of collaborative co-parenting.
The notion of the family, traditionally, has been closely circumscribed to conform to a heterosexually-dominated ideal form based on child rearing within the context of dyadic conjugality. In the past fifty years, this conception of the family has faced challenge from a number of different quarters, to the extent that it has not been uncritically accepted, at least within academic discourse, for some time.65 In
64 See for example John Eekelaar and Ronald Thandabantu Nhlapo, The Changing Family :
International Perspectives on the Family and Family Law (John Eekelaar and Ronald
Thandabantu Nhlapo eds, Hart 1998); Mavis Maclean, Family Law and Family Values (Mavis Maclean ed, Hart 2005); Alison Diduck, ‘Shifting Familiarity’ (2005) 58 Current Legal Problems 235; Elizabeth B Silva and Carol Smart, The New Family? (Sage 1999); Carol Smart, ‘Close Relationships and Personal Life’ in Vanessa May (ed), Sociology of Personal Life (Palgrave Macmillan 2011); Jones, Why Donor Insemination Requires Developments in Family Law: The
Need for New Definitions of Parenthood (n 5).
65 See for example the debates surrounding social parenting and the acquisition of parental responsibility under the Children Act 1989. In particular see: John Eekelaar and Petar Sarcevic,
Parenthood in Modern Society: Legal and Social Issues for the Twenty-First Century (Martinus
Nijhoff Publishers 1993); John Eekelaar, ‘Parental Responsibility - a New Legal Status ?’ (1996) 112 Law Quarterly Review 233; Andrew Bainham, ‘Parentage, Parenthood and Parental
40 recent decades, diminishing the social and legal prominence of such a conception of the family has been a theoretical and philosophical focus of some, particularly feminist, family theorists.66 A particular instantiation of this ongoing challenge to the hegemony of traditional conceptions of the family is the theorising that has taken place around same-sex families.67
It is worth acknowledging the broader scholarship that surrounds this area of work, particularly if researchers are ‘not only creators of new knowledge, but protectors and transmitters of old knowledge’.68 An often-quoted definitional starting point in family studies is the American anthropologist George Murdock’s definition of the family:
The family is a social group characterized by common residence, economic co-operation and reproduction. It includes adults of both sexes, at least two of whom maintain a socially approved sexual relationship, and one or more children, own or adopted, of the