CAPITULO III - Marco Regulatorio
III.1.3 Políticas adoptadas en el ámbito nacional
So far, this has largely focused on the impact of the judicial resolution of ‘known donor’ disputes on lesbian homonuclear families. This has resulted from the fact that known donor disputes are for the most part characterised in the case law and academic commentary as being about the creation of women-led families and whether or not the biological father can fit into that somehow. I would suggest, by contrast, that what are typically referred to as ‘known donor’ disputes concern parenting practices that sit on a continuum of collaborative co-parenting arrangements.412 At one end of the continuum there is the scenario that is being treated as the archetype of known donor disputes whereby a female couple approaches a (often gay) male friend and asks him if he is willing to donate sperm in order to enable them to have a family and the friend agrees to this out of altruism and solidarity with the female couple.
412 Deborah Dempsey, ‘Donor, Father or Parent - Conceiving Paternity in the Australian Family Court’ (2004) 18 International Journal of Law, Policy and the Family 76.
163 However, at the other end of the continuum is what might be termed poly- parenting arrangements where a lesbian homonuclear family was not the intended outcome but a parenting arrangement that involved both biological parents (and potentially both of their partners). These poly-parenting arrangements are the core focus of this thesis but it is also important to unpack the implications of the judicial resolution of known donor disputes. I would suggest, therefore, that not all of the cases that are loosely termed ‘known donor’ disputes conform to the archetype detailed above but sit somewhere between that and poly-parenting. Consequently, this section will explore how tensions between the vulnerability of female parents and the vulnerability of biological fathers play out in the different types of ‘known donor’ cases and how this is resolved in the case law.
Re B413 could be seen as coming close to the archetype of a known donor dispute,
although it involved a heterosexual family member rather than a gay friend. In Re
B the man (TJ) agreed to donate his sperm to his sister (S) and her civil partner
(CV), who was also the child’s biological and birth mother. There was some controversy as to how conception occurred (whether through intercourse or artificial insemination) but the judge did not consider it necessary to make any finding on this matter; as discussed in more detail below, he held that this would not have any impact on the outcome of the case. The case came before the court because the father was applying for a contact order and parental responsibility order following disputes with the female couple about his role in the child’s life. In the end, the judge held that the man should be allowed some contact (i.e. 4 times per year) but made no order in relation to parental responsibility. He attempted to
164 make this a long-term solution by making an order under s.91 (14) of the Children Act 1989 on all three parties to the affect that they could not initiate further litigation on this matter without the leave of the court for a period of five years. Had TJ been an anonymous donor, presumably the judge would have had no difficulties in refusing both of the father’s applications thereby denying him any legal relationship with the child. Although there has been no case on this, the Human Fertilisation and Embryology Act 1990 provided that the donor was not a legal parent for any purpose414 and this has not been changed in the Human Fertilisation and Embryology Act 2008.415 The factual scenario in Re B comes closer than the other ‘known donor’ disputes to a situation where a lesbian couple try to achieve their aim of starting a family through sperm donation but rather than the donor being anonymous/unknown they turn to a family member for help.
This raises the question of whether the mere fact that the man was known to the female couple should impact on his relationship with the child or imply a certain role in the child’s life. Nordqvist and Smart argue that this is not a straightforward or clear-cut issue as it might be in relation to anonymous/unknown donation. The author’s note that in these cases:
there are important social values and ethical questions at stake. For example, in any situation where a gamete donor is already known to a recipient…there are commanding questions about how much of a role a donor should have in the life of a child they have helped to create.416
This does not, however, necessarily imply that the decision to involve a known donor should result in him being legally recognised as a parent. It also does not
414 s 29 (2).
415 s 48 (2).
416 Petra Nordqvist and Carol Smart, Relative strangers : family life, genes and donor
165 imply that the donor should necessarily have any involvement with the child. However, as will be evident from the subsequent cases that will be discussed, the courts rarely exclude the biological father altogether.
To some extent, the judge in Re B did consider that there was some role for TJ to play in the child’s life, as can be seen from his judgment. Mr Justice Hedley held that:
it is essential that the door is kept open for BA so that without artificiality he can picture TJ as someone significant but not ordinarily important in his life yet someone with whom (in time and if he so wishes) he can explore the implications of the kind man who enabled him to be and he can ask questions to satisfy his own natural curiosity.417
In some ways the law does try to keep the door open for a relationship to develop even between an anonymous donor and the child by allowing the child to identify the donor once he or she has reached the age of 18.418 However, the judge’s solution in this case, of allowing contact to happen 4 times a year, seems to go above and beyond this.
This approach to contact is noteworthy because it exceeds the amount of contact offered by the female couple (i.e. once a year at family gatherings) but does not really come close to meeting the man’s expectations. This raises the question of why a contact order was made at all given the statement in the Children Act 1989 that the court ‘shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all’.419 Furthermore, as the judge highlighted, ‘the fulfilment of an avuncular role needs no contribution from the court’.420 Indeed the female couple in this case accepts
417 Re B (Role of Biological Father) (n 405) [29].
418 Disclosure of Donor Information Regulations 2004 SI 2004/1511. 419 Children Act 1989 s 1(5).
166 that TJ would continue to fulfil this role in the context of the child’s extended family and the contact that might be associated with this. Therefore, why should the court institute a contact regime that goes beyond the role of an uncle? The judge in this case seems highly influenced by what he characterises as the man’s ‘unique biological position’. This led him to conclude that it was ‘in BA’s interests to maintain some kind of relationship with TJ’ in order to be able to deal with any questions the child has as he grows up.
There are parallels here with the move towards increasing openness in the adoption process and the removal of donor anonymity.421 However, in each of these situations the courts do not impose a contact regime on the parties but merely leave open the possibility of a future relationship developing at the child’s instigation by allowing access to identifying information about the donor once the child reaches the age of eighteen. In the context of anonymous donation, the law precludes any kind of relationship with the child until he or she is eighteen. Therefore, in the judge’s eyes it would appear that there is a distinction (although not one that is specifically addressed in the judgement) between an anonymous donor and a known donor in terms of the relationship that ought to be allowed to develop between the donor and child.
It is, however, far from clear that merely donating sperm to help a lesbian couple conceive entitles a man that is known to the couple to play a significant role in the life of the child that is born as a result. Allowing such known donors to play a significant role in the life of the child would suggest that heteronormative conceptions of parenting influenced by biological essentialism were at play to a greater extent than in unknown donor situations. It would, therefore, be
421 Jane Lewis, 'Adoption: The Nature of Policy Shifts in england and Wales, 1972 - 2002’ (2004) 18 International Journal of Law, Policy and the Family 235.
167 inappropriate to consider the biological father in this case as a legal parent or as having parental rights and responsibilities in relation to the child because the intra-familial nature of the arrangement (without evidence of contrary intentions) suggests that the arrangement was one of donation and not ongoing parental involvement.
It may be the case that the decision to conceive with a known donor does and should carry with it certain implications. Perhaps it would be reasonable for a court to say that the very nature of a known donor arrangement implies a greater degree of contact than an anonymous donor arrangement. However, in Re B, the judge was quite clear that the purpose of contact was ‘not to give TJ parental status in the eyes of BA or indeed anyone else. It is not to allow the development of a relationship which would amount to parental.’422 Therefore, one might conclude that the biological relationship between TJ and BA was appropriately reflected in the four days a year contact and that the female couple’s homonuclear family was protected from perceived threat by the known donor through the judge’s refusal to grant TJ parental responsibility. As the judge correctly noted to do so would be inconsistent with the autonomy of the homonuclear family,423 and I would suggest that, on the facts of this case, this would have been done for no better reason than to advance a heteronormative conception of the family based on biological essentialism.
These comments are likely to apply in situations where there is a clear inference that the overriding motivation on the part of the known donor for donating sperm is to facilitate the creation of a lesbian homonuclear family. However, not all collaborative co-parenting situations can be characterised in this way and the
422 ‘Re B (Role of Biological Father)’ (n 405) [29]. 423 Ibid.
168 issues are considerably more complicated where lesbians and gay men collaborate to have children.
Two cases stand out where the issues were particularly finely balanced: R v E424
and T v T.425 R v E involved a female couple (who were civil partners) and a biological father who was in a same-sex relationship. The child’s primary carers were the female couple but the child had frequent contact with the male couple. In terms of the legal position, the father did not have parental responsibility (because at that time being on the birth certificate did not automatically confer parental responsibility unlike now).426 However, the second female parent did have parental responsibility by virtue of a parental responsibility agreement with the mother.427 Following a dispute between the two couples, the biological father sought a contact order, which allowed for overnight staying contact, as well as parental responsibility and shared residence. The issue of overnight staying contact proved relatively unproblematic and that developed at the child’s request. However, the female couple did not agree to shared residence or parental responsibility and, in fact, sought a residence order in their favour, which the trial judge granted, denying the father’s application for parental responsibility and shared residence.
In reaching this conclusion, the judge seems to have been strongly influenced both by pre-conception intentions and the post-birth parenting reality. In this regard, the judge found that the intention was never for the father to be a co- parent nor is that how things had turned out.428 One factor that may have been
424 R v E and F (Female Parents: Known Father) (n 368).
425 T v T (Shared Residence) [2010] EWCA Civ 1366.
426 Children Act 1989 s. 4 (1) (a). 427 Children Act 1989 s.4A (1) (a).
169 significant was that the contact arrangements had proved satisfactory for a number of years after the child’s birth. It was only following the dispute that the biological father came to view them as unsatisfactory. This could indicate a change of heart on his part especially considering that the judge found that ‘the father's position was already recognised by the female parents who had not attempted to marginalise him after the dispute, and who had consulted and would continue to consult him as to significant decisions.’429
However, it could also be that the arrangement had been satisfactory only until there was a disagreement over discipline because up until that point, all the parents were on the same page in terms of parenting. Therefore, it is difficult to gauge whether this is a case where the biological father subsequently sought more involvement than he initially did or that he was prevented from asserting his point of view with regard to the upbringing of the child, which he thought he had the right to assert.430 Nevertheless, the circumstances leading to the conception are sufficiently dissimilar to those in Re B, the case I am treating for these purpose as the archetypal known donor case, to warrant different treatment.
In Re B, the female couple had decided to have a child together and it was only after several unsuccessful attempts at becoming pregnant using unknown donor sperm that they sought the help of a family member. In R v E, however, the female couple and male couple discussed the possibility of having a child over a long period of time and there was no suggestion that the female couple would have gone ahead regardless using unknown donor sperm. Therefore, there is not the same sense in R v E, as there is in Re B, that the biological father was simply
429 Ibid.
430 For a discussion of the case from the latter point of view see Thérèse Callus, ‘A New Parenthood Paradigm for Twenty-First Century Family Law in England and Wales?’ (2012) 32 Legal Studies 347, 352.
170 enabling the female couple to have a child. This fact alone could be sufficient to mean that R v E is not a true known donor case, properly so-called, as Re B was, because the biological father was not simply making a donation of sperm with no intention of being involved in the child’s life, other than in his role as a family friend.
This version of family formation is born out not only by the recollection of the biological father and his partner but also that of the birth mother and her partner, even though the accounts of the men and women differ markedly. In the judgment, the biological father is described as recalling that for the female parents ‘it was important for a child to have a father who wants to play an active role in the child’s life. They wanted a good friend to be the father rather than a mere sperm donor’.431 The biological father’s partner is reported as recalling that the biological father ‘wanted to be fully involved with the child as a father’.432 The women do not explicitly refute this account but they were both clear that it was the two of them that were bringing up the child and ‘they would want to make final decisions about the child, having consulted [the biological father]’.433 Nevertheless, the judgment reports that the birth mother’s recollection is ‘that the child to be born would have a positive and meaningful relationship with Richard as the child's biological father’.434 Therefore, although this does not necessarily imply a high degree of involvement, even the women’s recollection of their pre- conception intentions does not sit easily with idea of the biological father as a mere (known) donor.
431 R v E and F (Female Parents: Known Father) (n 368) [12]. 432 Ibid. [13].
433 Ibid. 434 Ibid. [15].
171 The court in R v E does not explicitly recognise any potential tension between this family’s lived reality and the legal framework. There is little acknowledgment that the court struggles to accommodate this type of parenting arrangement within the existing legal framework. Therefore, the court seems to be shoehorning a parenting arrangement that doesn’t easily fit with existing models without acknowledging the potential difficulties this creates. Callus argues similarly that
R v E is an example of where the court appears:
to gloss over the legal reality of the situation in the hope of finding a solution which matches the practical reality. However, where the sperm donor father also has a relationship with the child, the reality is that a two-parent-nuclear family model is wholly inadequate.435
She also suggests that the judge’s reasoning is open to question relying as it does on the notion of parental responsibility, which the father did not have:
the argument that the father could not lay claim to being a co-parent and taking decisions is actually because the law did not grant him automatic parental responsibility. When he disagreed with a decision of the mother, he had no legal standing to object. Consequently, he needed to apply for parental responsibility in order to exercise the co-parenting role, which the judge found to be lacking.436
This is a plausible account of the father’s position and runs contrary to the idea of the father simply having changed his mind. Although, it is difficult, if not impossible, to determine what was agreed prior to conception without written evidence, this version of events does not seem to be contemplated by the court in R v E in its, understandable, attempt to protect the homonuclear family.
435 Callus, ‘A new parenthood paradigm for twenty-first century family law in England and Wales?’ (n 421) 351.
172 The case of R v E stands somewhat in contrast to that of T v T, 437 which is also open to criticism but more for undervaluing the role of the mother’s partner rather than being overprotective of it. T v T concerned the children’s biological father (F), who, along with his male partner, advertised for someone to have children with, and a female couple, the biological mother (M) and her partner (L), who responded to the advert. In this case F and M already had parental responsibility and the court at first instance further granted parental responsibility to L. Although the children spent most of their time with M and L, they did have contact with F. In addition to granting parental responsibility to L, the court at first instance also granted a joint residence order in favour of M and F, which provided for a significant amount of staying contact for F. In doing this, the court denied M’s application to restrict F’s parental responsibility and L’s application for a joint residence order in favour of M and L. The judgment at first instance seems to put F in a similar position to a post-separation father which the previously decided cases had been reluctant to do. M and L appealed against this decision asking the court to set aside the residence order in favour of M and F and preferably substituting it with a residence order in favour of M and L, failing which