By restricting the number of parents a child may have to one mother and one father, the law is unable adequately to accommodate increasingly complex reproductive arrangements. Children born following surrogacy arrangements, or children who have been adopted, have two mothers. When donated gametes are used, the genetic parent and the social parent are different people, but both are in different ways parents. One is a parent, in the sense that they do the job of parenting, whereas the other is the provider of half of the child’s DNA. Perhaps part of the problem is that the word ‘parent’ itself has a number of different meanings. As a noun, it could apply to both genetic and social parents, but as a verb, it refers only to the work involved in bringing up a child.
Why has the law continued to rely upon an exclusive model of parenthood despite the technical and social fragmentation of the normal incidents of maternity and paternity? The obvious answer is itself revealing. If a child has only one mother and one father, we can be certain about who possesses the various rights and obligations that attach to the status of being a parent. Were we to recognise multiple parents, we would have to decide which ‘parents’ should be obliged to maintain the child; which should be the primary caretakers; and so on. Parental exclusivity thus appears to have the merit of certainty. Yet this superficially appealing explanation in fact presupposes what it seeks to prove.
Consider, for example, our assumption that — barring serious ill treatment — the child’s parents have the right to be the primary caretakers throughout childhood. As Lord Templeman famously explained in Re KD (A Minor) (Ward: Termination of Access): ‘The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not endangered.’21 If we are genuinely uncertain about who a child’s parents might be, then their ‘right’ to be recognised as the child’s primary caretakers is essentially meaningless. It will point only to a number of candidates who cannot logically all have the prima facie right to care for the same child. Where there is more than one woman with a credible claim to be considered the child’s mother, there is no escaping the need to decide which woman should acquire the right to be considered the child’s principal caretaker. To say that this right vests with the child’s mother simply begs the question. With baffling circularity, then, in trying to decide between a number of possible mothers and/or fathers, the law in fact assumes that every child will have two (and no more than two) clearly identifiable parents.
The identification of parents is conventionally believed to be a question of fact rather than judgment, and so the test we employ in order to identify a child’s mother and father is supposed simply to locate the truth about the child’s origins. The problem, of course, is that there may be no obvious ‘truth’ to be discovered. Following egg donation, it is not necessarily self-evident whether the genetic mother or the woman who gives birth is properly described as the child’s mother. If parenthood is not a fact waiting to be discovered, we are going to have to make some decisions about the relative importance of various different aspects of motherhood and fatherhood. But introducing this element of choice into the identification of parents is profoundly counter-intuitive, and, as a result, it is probably unsurprising that the law has been reluctant to abandon the idea of a clear, factual test for parenthood. Judge De Meyer advocated just such a simple, but ultimately circular, definition of fatherhood in the judgment of the European Court of Human Rights in X, Y and Z v United Kingdom22 when he said that ‘it is selfevident that a person who is manifestly not the father of a child has no right to be recognised as the father’,23 as if, as Andrew Bainham has pointed out, ‘we all know a father when we see one’.24 Illogically, then, when identifying a child’s parents, we ‘implicitly appeal to some simple preanalytic concept of parent — hood’,25 when the reason why we need this definition in the first place is that genuine uncertainty exists. And of course, we can only be uncertain about who [210] [211] [212] [213] [214] should be considered a child’s parents if our concept of parenthood is much more fluid than we may have supposed.
The decision about who should have the prima facie right and duty to look after a particular child is no less a decision just because we present it as a question of fact (ie, who is the child’s mother?) rather than judgment (ie, who do we think deserves to have their parental claim given priority?). Admittedly, the law does not engage in a case-by-case determination of parenthood in order to allocate it to the persons who are best able to meet a particular child’s needs. But making intention — rather than the genetic link — the factor which determines the paternity of children born following sperm donation is nonetheless a decision rather than a straightforward question of fact. Preferring to give surrogate mothers and their husbands first refusal on the rights and obligations of parenthood is a choice which is obscured by the law’s insistence that gestation — as opposed to genetic relatedness or the intention to raise the child — is the defining feature of motherhood.
In addition to its obfuscatory function, the ‘all or nothing’ quality of parental status creates a further problem. Where the normal incidents of parenthood are distributed more widely than in the paradigm case, but the law has identified just one mother and one father, what is the status of the non-parents who nevertheless possess one or more of the normal incidents of parenthood? Because the law admits no middle ground here, such people are prima facie legal strangers to the child. So — to take IVF surrogacy as an example — the gestational mother is the legal mother, and the genetic and intended ‘mother’ is, in fact, not a mother at all. Yet on a common-sense understanding of motherhood, of course the woman whose fertilised egg develops into a child is in some important sense that child’s mother. She may not ever be the child’s social mother, but it makes very little sense to say that she is as unrelated to that child as a total stranger.
It might be argued that the problem here is essentially linguistic. Perhaps legal language simply has insufficient elasticity to accommodate the cultural and technological disintegration of the biological nuclear family. The principle of parental exclusivity means that the law has no concept of ‘partial’ or ‘incomplete’ motherhood or fatherhood: you either are or are not a child’s legal parent. Not only does this inaccurately describe many children’s parentage; it is also out of step with prevalent non-legal understandings of parenthood. It is certainly not now uncommon for children conceived sexually to have more than one man who might be identified as their father, and/or more than one mother-figure. Millions of children have a stepfather and a biological father. For children, the presence of multiple parents is undoubtedly less confusing than the law’s denial of their existence.
In essence, the principle of parental exclusivity fails to distinguish between two related but different aspects of parenthood: the status of being a parent and the power (or duty) to act as a parent. Of course, in the paradigm case, these two features of parenthood are inevitably blurred because the power to act as a parent derives precisely from being a parent. But where the normal incidents of parenthood are distributed between a number of different individuals, while not all of them will have the power to act as a parent, each one is, in some sense at least, a parent.
In fact, although the principle of parental exclusivity is indeed deeply entrenched, the law already distinguishes between the status of being a parent and the power to act as a parent, through possession of parental responsiblity. To be a parent is to have a connection with your offspring that will endure throughout both your lifetimes. Parental responsibility, on the other hand, is a more transitory and flexible concept. It will last only during the child’s minority, and it can be acquired by a variety of non-parents. Anyone who is granted a residence order automatically also gains parental responsibility for the duration of the order,[215] so step-parents or grandparents can be granted parental responsibility despite not being the child’s legal parents. Parental responsibility can also vest with a local authority after a child has been taken into care. Mothers (and in some circumstances fathers) will continue to have parental responsibility despite its acquisition by other parties. Thus, the number of people who can have parental responsibility for a child is not limited in the same way as the number of people who can be identified as the child’s legal parents.
Parental responsibility is, in essence, the right and duty to look after a child during childhood. It includes, for example, the right to give consent to a child’s medical treatment and to take decisions about education. In contrast to parenthood, parental responsibility — with its capacity to be shared, transferred and acquired — is flexible enough to accommodate the social reality of the child’s domestic circumstances where these do not conform to the traditional nuclear family. A social ‘parent’ does not have to become a legal parent in order to offer a child the security and support the child needs. By severing parenthood from parental responsibility, the law has acknowledged that the biological model of family life in which each child lives with her genetic mother and father no longer fits the complex and multiple parent-like relationships that a child may form during life. My proposal in this chapter is that we should take this existing legal recognition of parental variety a stage further.
The law has tended to assume that the bundle of legal rights and duties that normally flow from being a parent do so necessarily, so that recognising someone’s parental status would automatically vest that person with a range of powers and obligations which might — in the case of a sperm donor, for instance — be inappropriate. But the rule that everyone who is recognised as a parent is under an obligation to maintain their child until adulthood is a legal creation rather than a natural consequence of human reproduction. It would be perfectly possible to fix only certain parents with duties of support, or rights to be involved in the child’s upbringing.
We already have an example of legislation which facilitates the purely symbolic acknowledgment of a parental bond. Under the Human Fertilisation and Embryology (Deceased Fathers) Act 2003, it is possible for a man to be registered as the father of a child conceived after his death. The recognition of these deceased fathers’ paternity is only for the purpose of registration on the child’s birth certificate. None of the other normal incidents of paternity, such as inheritance rights, apply, thus avoiding the problem of testamentary uncertainty that might arise if a child could be conceived many years after the father’s death. For my purposes, the importance of this Act is its introduction of a new sort of parental status which is limited to the acknowledgment of paternity. Obviously none of the rights and duties that normally flow from being a parent can apply to these deceased fathers; instead, the Act simply allows the reality that these children did have fathers to be formally recognised. Lifting the numerical restriction upon the number of parents a child might have would enable this sort of symbolic recognition of parenthood to be extended to other ‘parents’.
The law has also already taken one small step away from the biological model of legal parenthood through the rules governing the paternity of children born following the artificial insemination, in licensed clinics, of women without husbands or consenting opposite-sex partners. Despite having a biological father, these children are legally fatherless: their mother is their only legal parent. Could we further extend this recognition that the ‘natural’ two-parent family is not always an appropriate way to describe the parentage of a child? Might the law additionally recognise that, in certain circumstances, a child has more than one mother or father?