CAPITULO II - Industria del software
II.3 La industria del software en Uruguay
II.3.2 Situación actual de la industria del software en Uruguay
Having discussed the pertinent legislative framework that operates in E&W and various Canadian jurisdictions in the previous chapter, this section will discuss a, still relatively small, body of case law that has built up in recent years, which is relevant to the study’s first research question of how the legal framework accommodates the procreative autonomy of gay men and lesbians engaging in or considering collaborative co-parenting arrangements. The courts in E&W
368 See for example Gillian Douglas, ‘The Intention to be a Parent and the Making of Mothers’ (1994) 57 Modern Law Review 636–641; John Lawrence Hill, ‘What Does It Mean to Be a Parent--The Claims of Biology as the Basis for Parental Rights’ (1991) 66 New York University Law Review 353; Marjorie Maguire Shultz, ‘Reproductive Technology and Intent-Based Parenthood: An Opportunity for Gender Neutrality’ [1990] Wisconsin Law Review 297–398.
369 See Andrew Bainham, Shelly Day Sclater and Martin Richards, What Is a Parent? A Socio-
Legal Analysis (Hart 1999) for a multi-disxiplinary analysis from a number of different
substantive perspectives.
370 See for example Jeanette Edwards, Sarah Franklin, Eric Hirsch, Frances Price, and Marilyn Strathern, Technologies of Procreation: Kinship in the age of assisted conception (Mancheser University Press 1993); Caroline Jones, ‘Parents in Law: Subjective Impacts and Status Implications around the Use of Licensed Donor Insemination’ in Alison Diduck and Katherine O’Donovan (eds), Feminist perspectives on family law (Routledge-Cavendish 2006); G A Dunne, ‘Opting into Motherhood: Lesbians Blurring the Boundaries and Transforming the Meaning of Parenthood and Kinship’ (2000) 14 Gender & Society 11.
146 invariably become involved in deciding how collaborative co-parenting arrangements should be recognised at the stage where there is a dispute between the adults. As a result of this, the courts in this jurisdiction have not typically been asked to recognise collaborative co-parenting arrangements with the consent of all parties as they have, for example, in Ontario. Therefore, the starting point of this analysis is how the courts resolve disputes between female couples and gay fathers who collaborate to conceive a child but subsequently disagree about their respective roles in the child’s life. It is important to recognise that the majority of these cases concern children born prior to the reforms instituted by the HFEA 2008. Therefore, these cases will be considered on the basis of the legal framework that existed at the time but also bearing in mind the effect the subsequent amendments would have.
The cases discussed in this section relate to situations that might arguably be characterised as collaborative co-parenting arrangements, although this will have inevitably been contested by one of the parties. The characterisation of these cases as potentially involving collaborative co-parenting arrangements is a preliminary issue that is worth highlighting at this stage before considering the case law in any depth. As mentioned in the introductory chapter of this thesis, an arrangement whereby a single or partnered lesbian conceives a child (normally not through sexual intercourse) with a single or partnered gay man and they co- parent that child (along with their partners if they are not single) typifies this study’s conception of collaborative co-parenting. However, there are certain parenting practices within same-sex families, evident in, what is commonly
147 referred to as, the known donor cases371 discussed in this section, which may approximate this model but also differ from it in certain key respects.
Consequently, a central issue raised in each of these cases is whether it concerns a collaborative co-parenting family, a homonuclear family or a sui generis family that lies somewhere in between. This is the subtext of what the parties are arguing about in each of these cases. Therefore, it is important to ascertain to what extent these distinctions are important or relevant and what, if any, legal consequences this should have.
The vast majority of relevant cases that have come before the courts, and therefore each of the cases that this section will consider, concerns a female couple that wishes to have a child to whom one of the partners has given birth. That element of these cases is never in dispute. However, the desires and intentions of the single men and male couples when entering into these arrangements is difficult to ascertain from the reported case law as there is invariably a lack of agreement between the parties. As a result, it is difficult to know what type of family the courts are dealing with.
In addition to this, it is difficult to ascertain what legal weight the courts attach to the different factual circumstances of the case because the courts are not always clear whether the outcome is influenced by a particular finding in fact , or whether the courts are applying some sort of general principle despite specific factual difference. What is more, the cases on this issue involve adults, which already have a range of legal relationships with the child and seek a range of legal remedies. In the majority of the cases, conception occurred prior to the coming
371 See for example Leanne Smith, ‘Tangling the Web of Legal Parenthood: Legal Responses to
148 into force of the Human Fertilisation and Embryology Act 2008. Therefore, the birth mother and biological father are considered the legal parents, with the former invariably having parental responsibility for the child and the latter often having parental responsibility as a result of being registered on the birth certificate.
These cases were being decided within a legislative framework that did not specifically contemplate the family forms that are involved and arguably the HFEA 2008 reforms did little to change this. Therefore, the way the courts interpret and apply the legislative framework of the Children Act 1989 in resolving these disputes remains instructive not only from the point of view of judicial willingness to accommodate the needs of collaborative co-parenting families but also in terms of the limitations of the legislative framework itself, which can be assessed in light of subsequent amendments.
A number of common themes are present in these female parenting known donor cases discussed below, which are highly relevant to a consideration of the legal response to gay and lesbian collaborative co-parenting. Issues relating to the legal weight attached to pre-conception intentions and post-birth parenting reality emerge as significant alongside the importance of genetics, caregiving and the possession of parental responsibility/legal parenthood. Nevertheless, the cases can be broadly separated into three categories. Firstly there are the cases involving disputes around both parental responsibility and contact. These include the High Court cases of Re D,372 Re B,373 R v E and F374 and the Court of Appeal
case of T v T. It will become evident that the courts do not always adopt a
372 Re D [2006] EWHC 2 (Fam).
373 Re B (Role of Biological Father) [2007] EWHC 1952 (Fam).
149 consistent approach to the use of parental responsibility in relation to these families. Secondly, there are the cases primarily concerning contact, which include the High Court cases ML v RW, P & L (Minors) and the Court of Appeal case A v B. Here the courts seem to strike a more consistent line in relation to contact. Finally, there is the case of Re G; Re Z, which is an application for leave to apply to the court for contact and residence orders and is the only case so far to be decided under the framework established by the Human Fertilisation and Embryology Act 2008. The remainder of this section will outline how these issues have been addressed by the courts in E&W, which will form the basis of a more theoretically-informed discussion of the courts’ approach in a number of jurisdictions in Chapter Four.
In these cases where the biological father does not have parental responsibility he may be seeking this, under the Children Act 1989, by way of, what was at the time, a joint residence order and he would also be seeking a contact order. The courts would now deal with these issues by way of a child arrangements order.375 In some of these cases, the mother’s female partner may already have parental responsibility pursuant to a parental responsibility agreement with the mother376 and in other cases the mother’s partner may be seeking to acquire this by way of a shared residence order. Each of these scenarios has different legal implications, which will be explored more fully when discussing the relevant cases. While this discussion may seem somewhat abstract at this stage, it is worth bearing in mind, and will hopefully become more concrete, through the subsequent analysis of the case law.
375 See s. 8 Children Act 1989 as amended by the Children and Families Act 2014. 376 Children Act 1989, s 4A.
150 The courts have been very reluctant to lay down general guidance for these sorts of cases, arguing that they are so fact specific that it would be impossible to decide them on the basis of general rules. While the best interests of the children remain the courts’ paramount concern there is room for judicial discretion as to which outcome best serves these interests.377 As Zanghellini comments:
The welfare standard is sufficiently amorphous that, when applied free of heteronormative preconceptions about what constitutes ideal parenthood and ideal parenting configurations, it will rarely dictate one single outcome, rather than suggesting a range of possible outcomes equally compatible with the child’s best interest.378
In some cases the courts have been explicit about the sufficiency of same-sex parenting and their desire to protect the same-sex nuclear (or homonuclear)379 family.380 However, in other cases the way the courts have disposed of the applications suggest that they are considerably influenced by the biological connection between father and child per se.381
Legal professionals in E&W have highlighted this inconsistency in how what is in the best interests of the child is determined and the difficulty this can cause in advising clients about the likely legal outcome. Lizzie, a solicitor in E&W, comments that:
You've got one couple's word against another or one party's word against another and you've got two very different dialogues going on - one perception and one story from one side and a very different story and dialogue from another and how do you reach a middle
377 See for example Helen Reece, ‘The Paramountcy Principle: Consensus or Construct?’
[1996] Current Legal Problems 267.
378 Aleardo Zanghellini, ‘A v B and C [ 2012 ] EWCA Civ 285’ (2012) 24 Child and Family Law Quarterly 475, 480
379 This term is used in the Australian case of Re Patrick (An Application Concerning Contact) (2002) 28 Fam LR 579. For a discussion of this case see Fiona Kelly, ‘Redefining Parenthood : Gay and Lesbian Families in the Family Court — the Case of Re Patrick’ (2002) 16 Australian Journal of Family Law 1.
380 See for example the discussion below of A v B and C at page 210. 381 See for example the discussion below of Re B at page 163.
151 ground on that and that and that's what the courts are finding and
the courts will say well we're looking at the best interests of the child but is the best interests of the child to work with say the lesbian couple and to give them the legal status and to make the donor or quasi-donor just that or is it to try and reach a more nuanced agreement.382
This seems a fairly accurate characterisation of how child welfare has emerged in the case law as an indeterminate standard that does not in fact call for a particular outcome in the case.
An analysis of the case law reveals that the courts’ struggle to reconcile the various parental claims in these families with what is in the best interests of the child. The pattern that has emerged is that the courts have aligned child welfare with the protection of the lesbian homonuclear family as the child’s central family with the duty and privilege of raising the child. However, child welfare does not definitively determine the outcome in favour of the homonuclear family in all cases but suggests a number of different outcomes that are consistent with the best interests of the child, as discussed above.383 As John Eekelaar has suggested ‘the very ease of the welfare test encourages a laziness and unwillingness to pay proper attention to all the interests that are at stake in these decisions’.384 I argue, therefore, that by interpreting child welfare in this way, the courts are paying insufficient attention to the psychological utility of legal recognition in relation to gay fathers.
In respect of legal parenthood, the courts are constrained by a restrictive legislative framework that affords no discretion over who to recognise as legal
382 UKPB9LG.
383 See page 150.
384 John Eekelaar, ‘Beyond the Welfare Principle’ (2002) 14(3) Child and Family Law Quarterly 237 – 249.
152 parents. Therefore, in some respects, the courts may be trying to achieve through parental responsibility, in relation to which they do have discretion, an outcome that might be better reached through a more flexible approach to legal parenthood.385 In making decisions about PR, whether through a PR order or a child arrangements order, the courts are required to the child’s welfare as the paramount consideration.386 This may be understandable with regards to parental responsibility, which, at least in theory, concerns the practical decision-making powers in relation to a child’s upbringing. However, the best interests of the child does not necessarily need to take the same precedence in relation to legal parenthood and does not explicitly do so in the legislative framework.387 Therefore, the ubiquitous best interests standard is being invoked in these cases, as it must in disputes over parental responsibility, but somewhat unnecessarily to the extent that the dispute is around status than parental responsibility, properly so-called.