Emily Jackson
Introduction
Because parents possess a bundle of important rights and duties, clear and unambiguous legal definitions of motherhood and fatherhood are self-evidently desirable. And yet the law has tended to assume that the existence of a parent — child link will simply be obvious. Whilst this may be true in the paradigm case of a child conceived through sexual intercourse and brought up by both her genetic progenitors, for an increasing number of children there may be genuine uncertainty about the identity of their parents. Reproductive technologies, as is commonly observed, have the potential to fragment our definitions of motherhood and fatherhood. Science, according to John Lawrence Hill, has ‘distilled the various phases of procreation — coitus, conception and gestation — into their component parts, wreaking havoc on our prevailing conceptions of parenthood’.[190] Where there are a number of possible mothers and/or fathers, how should we choose between them in order to identify a child’s legal parents?
At the outset, it is of course important to acknowledge that most children know who their parents are without any need to resort to a complex legal definition. This is because all of the various criteria that we associate with motherhood and fatherhood are crystallised in the same two people. Such parents fall within what we might refer to as the ‘core of certainty’ and represent what I intend to call the paradigm case. Outside of this core of certainty lies a ‘penumbra of uncertainty’ in which the normal incidents of parenthood are more widely distributed. Here, we may have more than one woman who has a plausible reason to believe that she is a particular child’s mother. For example, following egg or embryo donation, or IVF surrogacy, a woman gives birth to a child to whom she is not genetically related. Two women might then claim to be the biological mother of the same child. In such cases, the identity of the child’s legal mother is not obvious. Rather, outside of the paradigm case, we must decide which of the various candidates has the better claim to be considered the child’s legal mother.
Yet framing the question in this way uncritically accepts what I believe to be the law’s principal stumbling block, namely its assumption that a child can have only two legal parents: one mother and one father. Conventionally, legal parenthood has been an indivisible and exclusive status: either you are a child’s mother or father, or you are not.[191] Provided that one woman is recognised as a child’s legal mother, no other woman can have her ‘motherhood’ of the same child acknowledged simultaneously. This is, I shall argue, unnecessarily confusing for children, who may find it harder to understand that one of their ‘mothers’ is a legal stranger
than they would living with the reality that two women stand in a maternal relationship towards them.
In this chapter, I propose to examine what we mean by the word ‘parent’, both in the paradigm case and within the penumbra of uncertainty. A number of different criteria ground our definition of parenthood, and while in the paradigm case these are all present within the same two people, within the penumbra of uncertainty they may be split between different individuals. Because the law has been stymied by the principle of parental exclusivity, its response to the splitting of the normal incidents of parenthood has been to try to identify a hierarchy of criteria which will result in one putative parent’s claim trumping the others. In so doing, it has become spectacularly confused and confusing, not least because different hierarchies operate in different circumstances. So, for instance, the intention to become a parent will sometimes trump genetic relatedness, while at other times, the genetic link is decisive. I will suggest that the quest to identify one mother and one father within the penumbra of uncertainty has been a profoundly misguided enterprise. If instead we were to acknowledge the reality that some children have more than one mother and/or father, I think that we might be able to reach a solution that would have both practical and symbolic advantages for children and their parents.
In addition to the existing technological and social re-ordering of family life, new pressures on the legal meaning of parenthood can be foreseen. It seems that within a few years it will be possible to create gametes artificially, the most likely source being stem cell lines which have been extracted from human embryos. This will mean that same-sex couples will be able to have children who are genetically related to both of them. It is already possible to create what are known as parthonotes: that is, eggs which appear to begin the process of cell division without having been fertilised. Parthenogenesis — from the Greek for ‘virgin birth’ — might involve a child having only one biological parent. If human reproductive cloning becomes a reality, there will inevitably be considerable confusion over the resulting child’s parentage. Is the DNA source the child’s sole parent? Alternatively, is the woman whose denucleated egg was used also a biological parent? And what about the woman who gestates the pregnancy? Could such children therefore plausibly have three mothers?
My first task in this chapter is to offer some criticism of the way in which the law has tended to approach the question of the identification of parents. I intend to argue that the law has become hopelessly muddled and incoherent, and that it is time to rethink some of the assumptions which have traditionally underpinned the legal status of parenthood.