Claire and Neil initially sought access to donor insemination in the late 1980s, prior to the HFEA 1990. Under the Anglo-Welsh legal provisions at that time,[273] Neil would have been recognised as the legal father of any child resulting from donor insemination. Consequently, Neil could legally be named as the father on the child’s birth certificate.[274] This naming was clearly crucial for Claire and Neil, as the following exchange indicates:
Claire: We had looked at the law and we knew that children, we knew that in April
1987 they became, you [Neil] became the legal father on the birth certificate. Prior to that you had to lie. So we knew that, which was helpful. From our point of view that was quite significant because. . .
Neil: Well we didn’t want to lie because we were being open [about using donor
insemination].
Claire: Otherwise it was illegitimate. I think it was illegitimate wasn’t it? You either
lied or they wrote illegitimate on it and we didn’t want an illegitimate child.[275]
Claire and Neil highlight the legal changes made by the Family Law Reform Act 1987, which sought to remove the use of labels like ‘illegitimate’.[276] As outlined above, naming Neil the legal father put him in the same position legally (in terms of his status to the child), as he would have been had the child had been conceived from his own sperm. Crucially, Neil could attain this status on the basis of his marriage to Claire.
Claire and Neil indicated that, following the birth of their first child, they were open about the use of donor sperm and had informed their son and their families of his means of conception. In addition, Claire and Neil had participated in numerous press interviews. This would suggest that they had little concern for maintaining secrecy around their use of donor insemination. Claire and Neil did not appear anxious to ‘pass’ as ‘the family’, in contrast to a family-by-donation. Rather, it would seem that they were more concerned with the possibility of openness around their use of donor sperm. In addition, given Claire’s emphasis on illegitimacy, the legal status of the child and the potential stigma of illegitimacy were clearly important considerations.
A number of feminist legal commentators have noted the ‘quasi-illegitimate’ status of donor children prior to the Family Law Reform Act 1987 and HFEA 1990.[277] Snowden and Mitchell, on the other hand, have argued that often it is the ‘charge of illegitimacy in relation to the child [that] is more important than the fact of illegitimacy’.[278] The notion of the ‘charge’ of illegitimacy is significant. This indicates that discourse operates through an ‘economy’ of truth, whereby one form of ‘truth’ is privileged over alternatives. Hence, prior to the Family Law Reform Act 1987, legal discourse named the married heterosexual family as ‘legitimate’, thereby normalising this particular family form and marginalising ‘other’ families. Claire and Neil’s account indicates that the normalisation of the legitimate family in legal discourse is crucial. The ‘fact’ of illegitimacy is not a problem for them, it is accepted; Claire and Neil indicated they made no attempt to conceal their use of donor insemination (either within or outwith their family), but they expressed concern over the ‘label’ or charge of illegitimacy in legal, and concurrently social, discourse. This suggests that Claire and Neil attached particular importance to the authority of Anglo-Welsh legal discourse in their subjective experience of a ‘legitimate’ parental status.
Lisa and David also emphasised the significance of legally naming David as the donor-conceived child’s ‘father’ on the birth certificate. David noted:
I think I wouldn’t have been very happy at all going along and registering the birth as the father illegally which I would have been doing until whenever it was when the Act changed that. Because there was one lady [at the Donor Conception Network] who talked about how she broke the law [pre-Family Law Reform Act 1987]. So I knew that legally, in the eyes of the law, [post-HFEA 1990] that was all clear cut.[279]
David expresses relief that he could legally register himself as the child’s father. In fact, David’s actions in registering himself as the ‘father’ on the child’s birth certificate are equivalent to those of the woman he mentions at the Donor Conception Network. In both cases, the social father was registered as ‘the’ father on a donor-conceived child’s birth certificate, thereby occluding the identity of the bio-genetic father. However, as David’s child was conceived and born following the enactment of the HFEA 1990, his actions were explicitly legally sanctioned. This clearly highlights the authority of Anglo-Welsh legal discourse to ascribe, or deny, parental status to particular legal subjects and also points to the historical specificity of discursive constructions.[280]
At the time the Family Law Reform Act 1987 and HFEA 1990 were passed through Parliament, there was considerable political interest in child maintenance[281] and the preservation of ‘the family’ in the context of an increasing number of single-parent families and the development of assisted reproductive technologies.[282] The established legal principles (illegitimacy/legitimacy, and the presumption of paternity in marriage) governing parental status were considered inadequate to deal with the changing demography of families. The legislative changes ensured that children could be ‘attached’ to fathers regardless of whether they were linked through a bio-genetic tie.[283] It is significant to note that neither Claire and Neil nor Lisa and David mentioned naming practices within their families at any point during the interview. They were pleased that law’s ascription of fatherhood confirmed their subjective ascription of fatherhood. This effect lies in clear contrast to the accounts provided by lesbian couples.