In sum, acknowledging that the normal features that we associate with being a parent might be distributed among a number of individuals poses two important questions for the law. First, how should we choose which of the various possible ‘parents’ should also acquire the right and duty to care for and support the child? And second, having singled out the principal parent(s), exactly what is the status of the other individuals who possess one or more parental characteristics? Neither question is at all easy to answer, but my point has been that we should admit that these are matters of choice and judgment, rather than hiding behind a superficially factual inquiry into the identity of a child’s parents.
So, for example, making the intention to become a parent the decisive factor in allocating the rights and duties of parenthood following an IVF surrogacy arrangement would be synonymous with making surrogacy contracts specifically enforceable. But if gestation determines the identity of the principal mother, then we are deciding that surrogate mothers should always have the right to change their mind. My purpose here is not to express an opinion on either option, but rather to point out that our current preference for gestation reflects our decision to give surrogate mothers the right to renege on their agreements. It may be more convenient to say that the gestational mother is the only mother, and that the woman who contributed the egg and instigated the conception is therefore a stranger to the child, but the price to be paid for this simplicity is a fundamental misrepresentation of a reality of this child’s parentage.
The recognition of multiple parents certainly more accurately describes the parenthood of children born following gamete donation. A sperm donor is, in an important sense, the child’s genetic father, but this does not necessarily mean that he should have parental responsibility, or owe any other obligations to ‘his’ child. Instead, by signing the requisite consent form, he has voluntarily agreed to give up any parental rights and obligations, and the couple or individual who received treatment have (also by signing the requisite consent form) voluntarily agreed to assume full responsibility for the child from birth. It is therefore only the intended parents who possess the rights and duties we associate with parenthood. Acknowledging the paternity of the sperm donor is especially important given the removal of donor anonymity in April 2005.[216] In the future, children may trace and meet their gamete donors, making acknowledgment of their parenthood, albeit only in a genetic sense, more important. But if the law were capable of recognising multiple parents, this need not displace the parental rights and obligations of the intended or social parents.
Following surrogacy, acknowledging the existence of multiple parents might also be advantageous. When a child is born as the result of a surrogacy agreement, the couple or individual who recruited the surrogate mother are the intended, and often also the genetic, parents, and either of these tests could be sufficient to allow them to be recognised as the child’s parents from birth. Of course, the surrogate mother will always be the child’s gestational mother, and will sometimes additionally be genetically related to the child. She undoubtedly also has a compelling claim to have her maternity formally acknowledged. In most surrogacy arrangements, where the surrogate is happy to hand over the child at birth, a nonexclusive model of parenthood would permit the commissioning mother and father to be recognised as the child’s parents with parental responsibility from birth. The surrogate mother would continue to be the child’s birth mother, but she would have voluntarily waived all of the rights and duties we would normally associate with parenthood. Parental duties would instead vest only in the couple or individual with whom the child will be living.
But if the surrogate mother changes her mind about handing over the child, my model would lead us to ask which of the child’s parents should possess the rights and obligations of parenthood. The answer to this question depends upon whether one believes that surrogacy contracts should be specifically enforceable or not. If the arguments in favour of specific enforcement are preferred, we could say that the commissioning couple should always be recognised as the child’s parents with parental responsibility. It might, for example, be argued that the surrogate mother agreed to waive her acquisition of parental responsibility and the other incidents of parental status, in the same way as a sperm or egg donor, and that her agreement should likewise be binding upon her. The commissioning couple’s agreement to assume responsibility for the child’s upbringing might also be enforceable, so that a man like John Buzzanca would not be permitted to shrug off his obligations towards a child whose conception he instigated. But if specific enforcement is believed to be intrusive, oppressive or otherwise undesirable, parental responsibility could vest initially in the woman from whose body the child emerges. She would then continue to have the right to renege on her agreement to relinquish her parental responsibility.
If a surrogate mother changes her mind about handing over the child to the commissioning parents, we cannot avoid the need to choose where the child should live. No test for the identification of parents is capable of effacing the human tragedy of this sort of dispute. There is no easy or obviously right solution; rather, when surrogacy agreements break down, the party who is deprived of ‘their’ child will inevitably suffer profound distress. Whether we decide that the ‘losing’ party should be the surrogate mother or the commissioning couple, their disappointment will be intense. I would, however, maintain that the ‘losing’ party should be entitled to recognition, albeit largely symbolic, of their parental status. If the child is to be brought up by the surrogate mother, it might nevertheless be important for that child to know something of the circumstances of her conception, especially since at least one of the intended parents will normally also be genetically related to her. When the child reaches adulthood, the intended parents’ identity might be revealed. If the commissioning couple’s claim is preferred, the gestational mother’s identity might again be disclosed when the child reaches the age of majority. It is worth restating, however, that very few surrogate mothers change their minds. So, while I admit that my proposed shift towards the recognition of multiple parents is incapable of providing a solution to disputed surrogacy arrangements, it would solve the much more common practical problem that arises following surrogate births, namely the need for the child’s parentage to be transferred formally via judicial proceedings. Because, as we saw earlier, this cumbersome legal process creates an incentive for informal transfers, unknown numbers of children are currently living with ‘parents’ who may not have any legal obligations towards them.
It is important to remember that the recognition of multiple parents would not only apply when the normal features of parenthood are split by collaborative reproduction. A non-exclusive model of parenthood might also add clarity to cases of disputed paternity, because it would allow us to admit that a child may have two fathers, one genetic and one social. Once doubt has been cast upon the genetic paternity of a child’s ‘father’, I would agree that it is invariably in the child’s best interests to have the genetic parentage revealed by blood tests. The advantage of non-exclusive parenthood would be that acknowledging the genetic paternity of the mother’s ex-lover need not displace the paternity of the social father. On the contrary, as a result of his ongoing relationship with ‘his’ child, the social father should be formally recognised as the only legal father who also has parental responsibility. In Re H (Blood Tests: Parental Rights),[217] Ward LJ struggled to achieve precisely this sort of result. He argued that ‘the issue of biological parentage should be divorced from psychological parentage’. A direction for blood tests was issued because the child’s knowing the truth about his genetic paternity would not necessarily ‘undermine his attachment to his father figure and he will cope with knowing that he has two fathers’[218] (my emphasis). But because, under English law, the discovery that the mother’s ex-lover is her son’s genetic father completely displaces the social father’s ‘paternity’, the only way in which he could retain parental responsibility would be to apply for a residence order for ‘his’ child. A better solution, and one that Ward LJ himself appears to endorse, would be to admit evidence that the ex-lover is the genetic father, but to simultaneously affirm the social father’s status as the only father who also possesses the rights and obligations of parenthood.
Of course, recognising multiple parents will leave us with some extremely difficult questions. We would, for example, have to devise some mechanism for choosing which of the various individuals who possess the normal incidents of parenthood should be principally responsible for the child’s upbringing. My point is that we are already making these difficult decisions, but we are hiding them behind the supposedly neutral, objective and purely factual inquiry into the identity of a child’s parents.
Conclusion: A right to know the identity of all of your parents?
A child’s ‘right to know and be cared for by his or her parents’ is enshrined in Article 7(1) of the United Nations Convention on the Rights of the Child. While the Convention was ratified by the UK in 1991, it has not been directly incorporated into English law. Nevertheless, the concept of a right to know the identity of one’s parents has received judicial approval[219] and may additionally be protected by the right to respect for private and family life, now guaranteed by article 8 of the Human Rights Act 1998. In the words of Wall J, ‘[k]nowledge of their paternity is increasingly seen not only as a matter of prime importance to children, but as being both their right and in their interests’[220] (my emphasis). Obviously, giving effect to this right is only possible if we have a clear understanding of what defines a parent. The UN Convention on the Rights of the Child does not offer any definition, which either could mean that its drafters assumed that a child’s parentage would be a self-evident question of fact, or could indicate that states have a ‘margin of appreciation’ in the rules governing the identification of parents. Importantly, the right to know the identity of one’s parents does not necessarily imply any numerical limit upon the number of parents that might exist. Moreover, no practical rights or obligations automatically flow from the right simply to know the identity of one’s parents.
Of course, one consequence of a non-exclusive model of parenthood would be that a child’s birth certificate might have to record more than one mother and/or father. However counter-intuitive this might initially seem, my point is simply that some children do have more than one mother or father, and that by failing to acknowledge this, and to address its practical consequences, the law is unable to adapt to the complexity of family life in the twenty-first century. While the idea of parenthood as a divisible status would, in some respects, be a radical departure for the law, given that parenthood now is a divisible status, rethinking the legal conception of parenthood is a necessary, albeit difficult, task. Transparency and descriptive accuracy demand that the law relinquishes its principle of parental exclusivity in favour of a model of parenthood that is capable of accommodating its social and technical fragmentation. If people no longer reproduce and raise children within the conventional biological nuclear family, the law should stop pretending that the answer to the question ‘What is a parent?’ is a fact waiting to be discovered. Rather, however challenging, the law should address the messy reality of multiple parent-child bonds and relationships.