Parenthood and Artificial Human Reproduction: The Dangers of Inappropriate Medicalisation

Chapter 3
Parenthood and Artificial Human Reproduction: The Dangers of Inappropriate Medicalisation

In 1992 Professor Sheila McLean edited a volume of essays entitled Law Reform and Human Reproduction.1 Reflecting her consistent internationalist approach to legal study, the volume contained contributions from Australia, Canada, New Zealand, Czechoslovakia (as it then was), France, the United States and – my own contribution – the United Kingdom. That chapter focused on the Human Fertilisation and Embryology Act 1990, which the UK Parliament had recently enacted as a response to the legal and ethical issues arising from the developing medical technologies that had been explored in the Warnock Committee Report.² The major purpose of the 1990 Act was the regulation of medically assisted reproduction, and the licensing of its providers, and many of the issues covered in my contribution to that earlier book are examined in the present volume by Rebecca Cook and Bernard Dickens.³ As well as dealing with regulatory issues, the 1990 Act, under the headnote ‘Status’, also set out the legal rules for identifying who were the parents of a child whose existence had been brought about by the processes regulated under the Act.⁴ The issue of parenthood certainly does not lie outwith Sheila McLean’s broad field of interest, and she has had a direct impact on at least one aspect of the parenthood provisions in the 1990 Act, by chairing a review set up by the UK Department of Health into parenthood after the posthumous removal of gametes: some of the recommendations in her report, published in 1998,⁵ were enacted as the Human Fertilisation and Embryology (Deceased Fathers) Act 2003 and then re-enacted as s. 39 of the Human Fertilisation and Embryology Act 2008.⁶

The 2008 Act itself was a response to the substantially increased scientific understandings and capabilities in relation to medically assisted reproduction since 1990, but the opportunity was also taken to update the ‘status’ provisions in the earlier Act, in light both of the experiences in operating these provisions, which had proved to be much more technically troublesome than had been anticipated, and of the changing social realities of family life that had been experienced since the 1990 Act. The very word ‘status’, used in the 1990 Act to describe the issue, illustrates perfectly how dated the underlying assumptions of that Act were. A new set of rules, under the less recondite heading ‘Parenthood in Cases Involving Assisted Reproduction’, was enacted in Pt 2 of the 2008 Act.7

If anything, the social revolution in attitudes both to family life and family law was even more stark than the revolution in scientific capacity since 1990. A non-discrimination imperative had (none too soon) been embraced by law- and policy-makers, and same-sex couples (long used to constructing for themselves non-traditional families outwith the law’s regulation⁸) embraced the technologies that made non-traditional methods of human reproduction possible. But the match was, and remains, ill-fitting. The 1990 Act constructed ‘infertility’ as a medical problem and offered regulation of medically assisted reproduction as the legal solution. Yet the ‘infertility’ of same-sex couples is not traced to any physical deficiency amenable to medical intervention: rather it comes from the biological reality that they simply cannot themselves provide all the genetic material necessary to create children. It is no surprise, therefore, that same-sex couples continue to access artificial reproductive technologies by non-medicalised routes. It is the purpose of this chapter to examine the continuing appropriateness of constructing the issue as a medical as opposed to a social problem and to highlight, through the case law, an emerging gender tension to which this has given rise.

The Importance of Parenthood

Why is parenthood⁹ important? In the United Kingdom the significance of the question of who a child’s parents are to the welfare-based judgments courts are all too often asked to make about the child’s upbringing has long been a matter of dispute¹⁰ (typically played out in applications for residence and contact orders¹¹) but it has never been suggested that the matter is of no relevance and it is not without significance that parties to disputes about a child’s parenting continue themselves to raise the issue of parenthood (in an attempt to strengthen their own case or to weaken that of their opponents). The House of Lords endorsed the use of the word ‘parent’ to cover persons who were not genetically related to (or had adopted) the child in Re G (Children) (Residence: Same-Sex Partner)¹² and though Baroness Hale famously allowed the word ‘parent’ to mean either a genetic parent, a gestational parent or a social and psychological parent, the context in which these comments were made indicate that she had in mind ‘parent’ as someone who parents a child as opposed to someone with parenthood status:13 it is to be noted that she never allowed the social or psychological parent in that case the title of ‘mother’. In fields not ultimately governed by the welfare of the child, such as succession, child support and maintenance, ‘parent’ has a more absolutist (generally biological) meaning, irrespective of the social realities of the child’s life.¹⁴ It is not, however, crucial that the same people should be identified as ‘parents’ in every context in which the question arises. And, of course, as Campbell points out,¹⁵ the law’s conception of ‘parent’ may be very different from any individual child’s.

Parenthood Disputes Prior to 1990

Parenthood disputes have always been strongly gendered, reflecting the very different interests of each gender. Before the passing of the Human Fertilisation and Embryology Act 1990, such formal law as there was on determining how the parent-child relationship was to be established focused on the identification of the father: the identification of the mother was not perceived to create any room for dispute; it is a truth that has bedevilled the male psyche since the dawn of time that, while women always know who their children are, men never do. Men are reliant on information provided by women. The law has long attempted to provide men with some certainty by creating presumptions of paternity from known facts, the most important, and most wide-spread, of which is that a child born to a married woman is the child of the woman’s husband: pater vero is est, quem nuptiae demonstrant.¹⁶ This is a presumption of biological connection, drawn from the man’s relationship with the mother: fatherhood, in other words, has traditionally been located in a combination of biology and relationship with the mother, though biology is the sole determining factor in the absence of the appropriate relationship.¹⁷

Maternity disputes are different from paternity disputes, in concept, motivation and outcome. The doctrine in the Digest, mater semper certa est etiam si vulgo conceperit,¹⁸ reflects the fact that for most of human history there was no basis conceived possible, other than pregnancy and childbirth, upon which maternity could be identified. That ancient certainty was, of course, shattered by the development of medical techniques for creating a child using the genetic material of one woman and the gestational environment of another woman.19 There was much academic discussion of the question of how, in the face of that possibility, the law ought to define ‘mother’.²⁰ In the absence of legislation, there is no obvious answer to the question of whether a woman’s genetic contribution is more important than her gestational contribution: in truth, both are essential to the creation of new human life. The Warnock Committee, faced with two analogies (basing motherhood on genetics as fatherhood is, or basing it on a donation model, as they suggested sperm donation should be) made a pragmatic choice, which the UK Parliament accepted and gave effect to in s. 27 of the Human Fertilisation and Embryology Act 1990, discussed below.

The very fact that such a choice existed in relation to motherhood reveals a deeper truth: that parenthood in the eyes of the law is never, truly, ‘natural’ but is instead a social or legal construct whereby the law chooses to preference one factor over another in the definitional quest to locate parenthood in an appropriate individual. Genetic connection is the factor that is chosen to identify, for legal purposes, fathers and marriage is chosen as the factor that presumes this genetic connection: these are choices made by the law no less than gestational connection is the chosen factor that identifies mothers. If this is so, then the parameters of parenthood are as vulnerable to social change as any other legal construct. It is well-recognised that from a child’s perspective those who parent (as a verb) tend to have more significance to the child’s wellbeing than those who are a parent (as a noun indicating a genetic connection): it is not a self-evident truth that the noun is more important than the verb. This is not to deny that knowledge of one’s ‘roots’ has importance, but merely to suggest that in ranking genetic background with present upbringing there is nothing ‘natural’ in concluding that the former is more important, for any purpose, than the latter.

The Human Fertilisation and Embryology Act 1990: Mothers and Their Husbands

There was nothing radical about the Human Fertilisation and Embryology Act 1990: as with the common law, in determining parenthood one first starts with the mother and then one traces fatherhood through the relationship that she is in. ‘Mother’, as the lynchpin, requires a clear definition and was given one by s. 27 of the 1990 Act, as follows:

The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child.

This has been the law in the United Kingdom ever since: it is replicated in s. 33 of the Human Fertilisation and Embryology Act 2008. This absolutist approach renders the position of women in relation to parenthood far more certain than the position of men: the female provider of genetic material, if different from the gestational provider, is automatically and for all purposes excluded while the male provider will be excluded from parenthood only if various conditions relating to his consent are satisfied (and even then, as we will see, he retains an ‘interest’). One of the consequences of this, as McCandless and Sheldon point out,21 is that the position of the gestational mother in a surrogacy situation is made unchallengeably that of ‘mother’, with the result that she has absolute control over the parental order process and substantial control over the adoption process. By these means, surrogacy arrangements are rendered unenforceable.²²

Starting from the certainty of motherhood, the 1990 Act follows a centuries-long tradition in filiation by drawing a fundamental distinction between births to married and births to unmarried women. Section 28(2) provides that if a woman was party to a marriage at the time of the placing in her of an embryo, or of sperm and egg, or her (artificial) insemination and her husband was not the provider of the (male) genetic material, then that husband will nevertheless be regarded by the law as the father of the child, though he can avoid paternity by showing that he did not consent to the artificial conception.²³ This has the effect of transferring fatherhood from the man who was the biological progenitor to a man who is not. This is less radical than it might sound, for fatherhood’s starting point continues to be the man’s relationship with the mother: s. 28(2) is little more, then, than a modern manifestation of pater est quem nuptiae demonstrant.

There is, however, an important limitation to the rule in s. 28(2), which is that it is applicable only when the child is conceived through ‘artificial’ means. So if a married woman becomes pregnant by sexual intercourse with a man other than her husband it is the biological progenitor who will be the child’s father, even if the intent of all parties was that the husband would be – would perform the role of – father.²⁴ This limitation may be a necessary consequence of the fact that the 1990 Act is designed to regulate, and to provide parenthood rules following, medically assisted reproduction, but if so the rule in s. 28(2) is too broad since it applies to self-administered as well as medically assisted artificial insemination. Why a child’s legal paternity should turn on the mechanism by which sperm was introduced into the mother is obscure.²⁵

The rules are rather different if the mother was not married at the time of her (artificial) insemination. In this case, s. 28(3) of the 1990 Act provides that the mother’s male partner will be treated in law as the father of the child if the treatment was provided to the woman and the man ‘together’. Paternity, once again, is traced to the mother’s relationship with the man. The phrase ‘treatment together’ proved unexpectedly contentious as a matter of statutory interpretation and there followed a substantial amount of litigation on the parameters of the phrase.26 The importance of the provision, however, must not be overshadowed by its inherent ambiguity. There is no prohibition in the 1990 Act on artificial reproductive technology being made available to persons other than married couples, though there was a half-hearted attempt to encourage treatment providers to preference opposite-sex couples.²⁷ Children born to unmarried couples, no less than children born to married couples, need clear rules identifying who their parents are, and Parliament accepted that these rules should permit, as they do with married couples, transference of paternity from the biological progenitor to the man intended to play the social role of father.

However, the application of the rule in s. 28(3) is limited to pregnancies that come about by licensed medical assistance. This has the clear effect of pathologising artificial insemination, which is entirely inappropriate for female couples where the need for a third party contribution is not traced to any medical condition. Female couples do not suffer from any disability that needs ‘treatment’:²⁸ their practical need is simply for access to sperm, and their legal need (which was not met by the 1990 Act) is a means to transfer parenthood from the provider of the sperm to the mother’s partner.

In the end, the result of the 1990 Act was not so very different from the common law. The crucial distinction in determining parenthood continues to be between married and unmarried couples and the right of parenting (in the absence of any further court order) remains exclusively vested in that couple. The provision of a rule establishing non-genetic paternity over a child born to an unmarried mother is better seen as an aspect of the vastly decreased significance of the concept of illegitimacy than of any great shift in legal attitudes towards parenthood itself.

The Human Fertilisation and Embryology Act 2008: From Status to Contract

From around the 1990s, systems of family law across the Western world abandoned the overtly political purpose of preferencing certain forms of family in favour of responding to the functions that families perform irrespective of their makeup. It was becoming increasingly obvious that the traditional family model provided too limited a focus for the law, and especially so in relation to the parent-child relationship.²⁹ Unmarried couples, though still without comprehensive financial claims against each other in England and Wales, have been permitted to adopt children there since the coming into force in 2005 of the Adoption and Children Act 2002; increased financial rights and obligations were granted to cohabiting couples30 in Scotland by the Family Law (Scotland) Act 2006,³¹ and joint adoption permitted to cohabiting couples by the Adoption and Children (Scotland) Act 2007 (coming into force in 2009). An even more significant cultural development since 1990 has been the revolution in attitudes towards same-sex couples.³² The law responded to this development by vastly increasing the protections afforded to such couples in both family law and equality law. The most important legal development in the UK for same-sex couples between 1990 and 2008 was of course the Civil Partnership Act 2004, which created a means by which same-sex couples could register their relationship with the state and acquire thereby virtually all the responsibilities and rights that flow from marriage.³³ These social and legal developments rendered the ‘status’ provisions in the 1990 Act woefully out of date and so, when that Act was revised by the 2008 Act, the opportunity was taken to amend the parenthood rules to provide (as the adoption legislation had already done) for joint parenthood for same-sex couples. The rules determining paternity were extended to female partners of mothers in two ways: (i) the civil partner of the mother is deemed to be the ‘female parent’³⁴ or ‘other parent’³⁵ of the child on the same basis as the mother’s husband would be deemed to be the father,³⁶ and (ii) the non-registered partner of the mother is deemed to be the ‘female parent’ or ‘other parent’ if both she and the mother agreed that she should be treated as the parent.³⁷

The clumsy terminology is to be noted. The Act cannot bring itself to allow a child to have two mothers. ‘Motherhood’ is reserved to the provider of the gestational environment and her partner’s ‘parenthood’, traced to the relationship with her, is something different, and less absolute. Just like its 1990 predecessor, the 2008 Act starts from the solidity of the definition of ‘mother’ and traces co-parenthood through her relationship with her partner. The mother is unshakeably the child’s first parent.

The unregistered partner of the mother will become father or other (or female) parent not, as under the 1990 Act through the fact that licensed treatment has been provided to the couple ‘together’, but instead through both the mother and the partner consenting to the ‘agreed parenthood conditions’.³⁸ These conditions are, as McCandless and Sheldon point out,³⁹ deliberately designed to be contractual in nature, which can be seen clearly in the case of Re E and F (Assisted Reproduction) (Parents).⁴⁰ Here, the mother’s partner was denied parenthood because of a technical deficiency, rather than anything to do with her relationship with the mother, or indeed with the child. The forms by which the mother and her partner signified their agreement that the partner be treated as parent were completed just after, rather than (as required) before, the insemination treatment was provided. In addition, the forms were regarded as invalid since they had not been preceded by the required counselling, and so, though signed, had not been signed with ‘informed consent’. Though a contractual analysis underpins ss. 36 and 43, the availability of the contract is limited to couples who access infertility treatment through licensed providers. As under the 1990 Act, the unregistered partner will be denied parenthood – whatever the terms of any contract or agreement – if the couple use non-medically assisted means (whether sexual intercourse or self-administered artificial insemination with privately acquired genetic material). As we will see below, it is this exclusion that has caused most difficulties for the courts.

Notwithstanding its extension of the rules to female couples, the 2008 Act is, in its underlying assumptions, as traditionalist as its 1990 predecessor and it creates a limited and exclusive legal parenthood that takes as its template the traditional nuclear family. It reflects what McCandless and Sheldon describe41 as ‘parental dimorphism’, that is to say a model that cannot conceive of more than two parents: (i) a mother and (ii) her husband or her civil partner or her non-registered partner. The two parent model may well have reflected both social reality and legal principle when no-one conceived of parenthood in any terms other than biological. Yet once the genetic underpinnings of parenthood are broken – and a central aim of both the 1990 and 2008 Acts was to allow that breaking without the necessity of court process (that is, adoption) – there is no logical reason why parenthood needs to be kept within the bounds of the traditional model. Callus similarly suggests that if the law were to preference parenting over parenthood then the way would be open to multiparty parenting.⁴² In truth, this is a plea for the rejection of the distinction between parenthood and parenting but the distinction will remain necessary so long as some issues (such as succession) are unchallengeably governed by the former while other issues (such as parental responsibilities and parental rights) are founded (and increasingly so) on the latter. In any case, multi-party parenting would work only when all parties are able to agree roles without misunderstanding and the case law to be discussed below suggests that unambiguous agreement is extremely difficult to achieve.⁴³

One important consequence of the law continuing to trace parenthood through the mother is, of course, that the new extensions of the parenthood provisions could not be applied to male couples. The only option for male couples is court action, either seeking an adoption order or a parental order following surrogacy.⁴⁴ The only concession made to male couples by the 2008 Act is its extension of title to seek a parental order to them so that, reflecting the adoption provisions, both male civil partners and male unregistered couples can now seek and obtain parental orders after surrogacy.⁴⁵