The case I wish to consider in detail is Re R (a child).[456] This was a case in which a man sought to claim parental responsibility in relation to a child who was not genetically related to him. In many ways, this case is the exact antithesis of ‘old’ paternity suits, in which mothers who had given birth to illegitimate children went to court to try to secure a ruling that a specific man was the biological father, in order that he could be required to pay maintenance.[457] In these cases, men were typically denying paternity and seeking to avoid a long-term responsibility for a child. In Re R (a child), however, the man knew he was not the biological father, yet he was seeking to take on the responsibilities (which could include financial responsibilities) of a child, notwithstanding the fact that he was not in a relationship with the mother any longer.
The elements of this case as reported were that a child (a girl) was born in 2000 as a consequence of IVF treatment involving egg removal and embryo replacement, and anonymously donated sperm. The couple was not married, but had been in a long-term relationship and had been seeking assisted conception since 1994 as a consequence of the man’s infertility arising from testicular cancer. The couple underwent one course of treatment, which did not result in pregnancy, but by the time the woman returned for the second and final course the couple had split up. She did not inform the clinic of this change in her circumstances. The second treatment was successful, resulting in the birth of a daughter who was the genetic child of the birth mother, but not genetically related to her former partner. On the birth of the child, the man (known as B) applied to the court for a parental responsibility order and a contact order. At this stage, the mother was in a new cohabiting relationship.
B was granted (indirect) contact and parental responsibility by the lower court. Hedley J stated: ‘Accordingly I declare that pursuant to s 28(3) of the 1990 Act he is the legal father of this child.’[458] The judge’s reasoning was straightforward. He argued that the couple entered into a joint enterprise together and neither of them withdrew consent to the treatment. Although their circumstances changed, the hospital was not informed, and so the original consent form was still the legitimate legal context which governed the birth of the child. Hedley J also pointed out that not only had the man agreed to be the legal father of a child who would not be genetically related to him, but a sperm donor had been selected whose general physical characteristics would match those of the prospective legal father.[459] Not surprisingly, much emphasis was placed on the meaning of the words in the 1990 Human Fertilisation and Embryology Act, and Hedley J’s reading of this legislation meant that he concluded that a core purpose was for assisted reproduction to be facilitated in the context where a child would have a (legal) father. He felt therefore that there was a clear, simple and certain approach, namely one that recognised that there had been an original agreement from which neither had withdrawn, and the man was willing to be the father, and the ‘provision’ of a father was one of the desired goals of the Act.
In his judgment, Hedley J stated: ‘Of course in this case one must have considerable sympathy with B. He wishes to be R’s father and has responsibly fulfilled his obligations under my original order.’[460] This quotation is important because it reveals the influence of a man’s claim that he ‘wishes to be the father’. Perhaps because judges and others are so used to single men wishing to avoid being fathers, the mere assertion of the desire places the man in a very strong position. Of course, the ‘wish’ alone did not sway the case, but it is treated as central. This man fulfils the New Labour dream of the responsible parent who wants to embrace his duties, even though he is not actually a biological parent at all. In Hedley’s judgment, the desirability for a child to have a father, as stated in the legislation on human embryology, was also an important factor. Basically, the legislation said that children need fathers, and here was a man who wanted to be a father.
The mother appealed against the judgment by Hedley J that her former partner should be granted a parental responsibility order (although she did not appeal against the indirect contact order), and the appeal was heard by Hale LJJ and others, with Hale providing the leading judgment. This time, the mother was successful and B was not granted parental responsibility. Hale argued (in agreement with the QC acting for CAFCASS) that
. . . s 28(3) is an unusual provision, conferring the relationship of parent and child on people who are related neither by blood nor by marriage. Conferring such relationships is a serious matter, involving as it does not only the relationship between father and child but also between the whole of the father’s family and the child. The rule should only apply to those cases which clearly fall within the footprint of the statutory language.[461]
In this argument, Hale situated the parties in the context of their wider families. In other words, she did not just see it as a matter of simply establishing the man’s relationship with the child, but she recognised all the other relationships which would be created by such a recognition of paternity. That is, she did not see this as an issue between two autonomous individuals, but as an issue of complex relationships involving several people. In this context, she went on to raise the question of whether the child would really benefit from the presence of her mother’s former partner in her life. She notes that his presence in her life might actually harm the relationship between her mother and her new partner, so that the family in which she was being brought up might be destabilised. Finally, Hale returned to the issue of sympathy and whether it should guide legal judgment. She stated:
… it is helpful to consider whether the conclusion reached in a case where one’s sympathies lie in one direction would be equally attractive in a case where one’s sympathies would lie the other way. . . Cases such as this, where a man wishes to assert paternity against a mother who wishes to deny it, are by no means uncommon. But had this mother been wishing to extract child support from this man, the court would have been slow to adopt a construction which would allow her to do so.[462]
Hale went on to argue that if the facts governing conception were unchanged, with the mother conceiving a child through some element of deception (as in this case), the courts would not have forced paternity onto the unsuspecting (genetically unrelated) former partner. Thus Hale proposed, by inference, that his claim to paternity should not be forced on the unwilling mother.
So, in the end, B was not declared to be the legal father of the child, but the final outcome is not necessarily the most significant issue here. This man can be seen to symbolise the new fatherhood. The fact of taking this case and arguing for a legal relationship to a child in circumstances which would have been virtually unimaginable even as recently as a decade ago provides a narrative form for the shape and substance of what good, dutiful fathers can now be like; moreover, the biological link is no longer seen as necessary to trigger this sense of responsibility. Hale located this case in the context of men’s changing attitudes towards their responsibilities as fathers and pointed out that it was no longer unique that cases over paternity are now likely to be brought by men wanting to claim their legal status as fathers.[463] We cannot know, of course, whether more men want to be recognised as fathers than before, but, if Hale is right, it may be that men are articulating this desire in new ways, namely through the courts and through avenues created by new interpretations of legislation. What is more, they are able to call upon the combined impact of ‘rights talk’, ‘welfare talk’ and ‘care talk’. In this case, B deployed all three. His rights were generated by the original contract with the clinic; the ‘welfare of the child’ element was met by the provision of a father as required by the legislation; and care was evidenced by his willingness to take responsibility and to undertake actual care of the child. Hale’s rejection of his arguments was based on a disagreement over whether the long-term welfare of the child would be met and also a reluctance to concede that the rights generated by the contract with the clinic could defeat the rights of the mother to resist his claim to have a legal relationship with her biological child. She also shifted the framework of his claim away from one which envisages an autonomous legal subject (namely the father) attempting to create a legal relationship with another legal subject (namely the child) to one in which all the parties are located in their wider families and webs of relationships. Hale therefore redefined fatherhood in terms of a set of relationships, rather than a narrow dyadic relationship between father and child. Her judgment can be seen as an alternative formulation of fatherhood, which rejects the new narrative of the father as a lone, heroic figure. However, it is not clear at this stage whether Hale’s more relational vision of fatherhood or the more heroic version will gain ascendancy in family law.