Julie McCandless

The Human Fertilisation and Embryology Act (2008) and the Tenacity of the Sexual Family Form

The new parenthood provisions set out in Part 2 of the Human Fertilisation and Embryology Act 2008 have been attacked as dangerous and radical, offering a ‘lego-kit model of family life’ and a ‘magical mystery tour’ in how legal fatherhood is to be determined. In this paper, we explain what is innovative about these new provisions but also explore what they owe to deep-rooted traditional assumptions about the family. Relying both on published documentation relating to this reform process and a small number of key actor interviews, we trace the imprint of what fineman has described as the ‘sexual family’ model on the provisions. We conclude that the way that parenthood is framed within the legislation relies on a number of important normative assumptions which received very little scrutiny in this process. We also highlight a number of tensions within this framing which, we suggest, may create future problems for judicial determination.

LEGAL EMBODIMENT: ANALYSING THE BODY OF HEALTHCARE LAW

In this essay and the contributions that follow, we advocate an expansion of the parameters of mainstream healthcare law to include feminist analyses of embodiment. We suggest that a more thorough engagement with the meaning and value of embodiment can better inform normative assessment and critical appraisal in healthcare law. Laws conventional approach to regulating bodily interventions has been to consider the body as an object of analysis rather than as a category of analysis. In our view, legal analysis could offer a richer understanding of laws engagement with bodies and bodily materials if it adopted a thicker conception of embodiment. Such a conception would seek to account for the ways in which we value the living physical body as it enables our being in the world and our interactions with others. We argue that in framing our understandings of embodiment, healthcare law would benefit from employing cultural studies methods, as well as the bioethical analysis on which it has traditionally drawn. In particular, we view feminist scholarship on embodiment as a key resource for thinking through such a shift in parameters and methodology. Building on this work, we argue for a shift from more familiar notions of sexual difference to embodied differences. This would direct attention to the myriad ways in which law values or denigrates bodies and the choices we make about our bodies. We suggest that healthcare law has implicitly considered the body in three key ways—as an object of choice, a site of property and a source of vitality. We then argue that a more explicit conception of legal embodiment entails four key dimensions—subjective, intersubjective, material and symbolic—which in combination offer a normative and critical framework1 for deciding which values act as trumps in a given situation and for assessing how and why a particular value or combination of values come to be perceived as important in a given moment.

RECOGNISING FAMILY DIVERSITY: THE 'BOUNDARIES' OF RE G

In Re G, the Court of Appeal awarded a joint residence order to the appellant, who was the lesbian ex-partner of the child’s full biological mother. The award also indirectly vested the appellant, a social parent, with parental responsibility and extended a body of case law to same-sex couples, which had until now only been applied to heterosexual couples. The initial purpose of this note is to outline the legal issues of the case in the context of the framework of parental responsibility set out in the Children Act 1989, putting forward a test of ‘parental fitness’ (which focuses on active ‘care’ as its central consideration) for social parents who must appeal to the court’s discretion to obtain parental responsibility. Secondly, the note offers at once a positive reading of Re G while highlighting a number of reservations centring upon continued legal preference for the ‘sexual family’. It is argued that while the legal recognition of ‘family diversity’ and parenthood remains modelled on this ‘sexual family’, the relaxation of family ‘boundaries’ (despite legal victories such as Re G) will remain limited.

Status and anomaly: Re D (contact and parental responsibility: lesbian mothers and known father) [2006] EWHC 2 (Fam), [2006] 1 FCR 556

This case comment seeks to examine the family form rhetoric in the High Court case of Re D (contact and parental responsibility: Lesbian mothers and known father) [2006] EWHC 2 (Fam), [2006] 1 FCR 556. Specifically, the comment seeks to relate the concept of the two-parent ‘sexual family’ (Fineman, 1995, pp. 143–76), as the means of legitimising and organising familial relations, to the decision in Re D. In Re D, the High Court granted a restricted form of parental responsibility to the applicant and child’s biological father, Mr B. The respondents, Ms A and Ms C – a lesbian couple who are D’s co-mothers and primary carers – objected to the application. By granting Mr B a contingent form of parental responsibility, Judge Black felt that she was taking a ‘creative’ approach to parental responsibility that would accommodate Mr B’s need to be recognised as D’s father, as well as reflecting the ‘paramount position of the family comprising the two mothers and the [child]’ (para. 93). Re D is a notable case for several reasons. First, it directly situates parental responsibility in the context of parental status and recognition, as opposed to its more traditional presentation as a practical tool for parenting. The ‘creative’ use of parental responsibility in Re D further reflects the current inadequacy of legal terminology in a society where parenthood increasingly occurs outside the confines of the traditional nuclear family. This change has contributed to the growing significance of obtaining parental responsibility in the absence of any alternative recognition or grant of status that may better suit a particular parenting role. Second, while arguably affording further and welcomed legal recognition to samesex parenting and families, the judgment in Re D emphasises the limited form of this increased recognition and its dependence on a sexually intimate couple as opposed to

Cinderella and her cruel sisters: parenthood, welfare and gender in the Human Fertilisation and Embryology Act 2008

This paper takes as its starting point the comparative parliamentary time spent discussing the welfare of the child and parenthood provisions of the Human Fertilisation and Embryology Act 2008. While the former commanded over 8 hours of debate – most of which was spent discussing the proposed removal of the words “the childs need for a father” from the legislation – the parenthood provisions generated approximately only one hour of debate. This seems curious, given that the parenthood provisions (which govern the attribution of legal parenthood following certain fertility treatments governed by the legislation) are likely to have much more of a “real life” effect, and given that subtle changes in the wording of the welfare provision from “need for a father” to “need for supportive parenting” are unlikely to make a great deal of difference to actual clinical practice. In contrast, extending legal parenthood to a second female parent from the moment of a childs birth has important symbolic as well as practical legal consequences for two women having a child together. This paper begins by setting this curious scene and explaining why it is problematic. The first part of the paper focusses on the reform of the welfare clause and will contextualize the extensive discussion of this clause in socio-political concerns about assisted reproduction, the role of men and masculinity in family life, and the role of genetics in underpinning these concerns. Against this backdrop, the second part of the paper then analyzes why so little attention was paid to the parenthood provisions, pointing to the “common sense” assumptions which typically shored up the discussions surrounding this part of the legislation. This part of the paper will also draw attention to a number of significant gender-based connotations in the parenthood provisions.

Reforming birth registration law in England and Wales

The Law Commission of England and Wales is considering what its 13th Programme of Law Reform should address. During the consultation process, a project on birth registration law has been mooted. This is a very welcome proposal given that civil birth registration in England and Wales is a compulsory procedure that not only finds its roots in the early Victorian era, but also remains very similar, at least in terms of form and the information that is recorded. I first use two recent legal challenges to illustrate why the current system is coming under increasing pressure. I further use these examples to caution against a law reform agenda that is narrowly focused on the precise information recorded, without a preliminary and wider examination of what the role and purpose of birth registration is, and should be, in society. I argue that this needs to be addressed before the state can justify the parameters of the information recorded. I then use an outline of historical reforms relating to the registration of births outside of marriage to highlight the normative two-parent family model that underpins the birth registration system. I argue that legal reform must be cognizant of the tenacity of this normative family model, particularly in relation to reform proposals surrounding donor conception and the annotation of birth certificates. Finally, I draw attention to wider developments in family law that cast birth registration as a social policy tool for the facilitation of parent–child relationships, particularly unmarried fathers.