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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 24 April 2015
Should Paternity Be Linked To Sexual Intercourse?
Michael Eburn*
i. intrOdUctiOn
Although issues of paternity are usually uncontroversial, the use of
artificial insemination has required the law to develop rules
to determine who
is to be considered the father of a child. This paper will look at paternity and
the important, but misplaced focus
that the law places on sexual intercourse in
deciding who should have paternal rights and
responsibilities.1
It is argued that the law could chose between one of three reasonable options for defining who is the father of a child, they are the genetic father, the social father or accept that children have more than one father. Under current Australian law a child can have only one father but determining who the
‘father’ is depends on none of these factors, instead the laws
focus is on whether or not the child was conceived following
an act of sexual
intercourse or artificial insemination. It is argued that the current approach
is misplaced and unreasonable. In
developing this argument I will explore the
logical implications of the various legal options available.
ii. paternity and aUStraLian FamiLy Law
The Family Law Act 1975 (Cth) does not comprehensively define who is a
father or a parent of a child. In Tobin v Tobin 2 the court was asked to
take an expansive view of who is a parent and include a person who had been the
foster father of a child and
who had, therefore, voluntarily undertaken the care
of a child and traditional paternal responsibilities. With respect to the
obligation
to pay child support, the court said ‘in our view, the natural
meaning of the word [parent] of a child is the biological mother
or father of
the child and not a person who stands in loco
parentis.’3
Statutory provisions create exceptions to this rule and so give an extended
definition of ‘parent’. Where a child has
been adopted,
‘parent’ means an adoptive parent of that child.4 Where a
child has been conceived as a result of
* Senior Lecturer, School of Law, University of New England, Armidale, NSW.
2 [1999] FamCA 446; (1999) 24 FamLR 635.
3 Ibid, 645.
4 Family Law Act 1975 (Cth) s 60D.
artificial conception procedures, then, subject to relevant state law (discussed below), the father is the man who was married to the woman at the time and who consented to the procedure.5 In both of these cases, the biological father is not a ‘parent’ for the purposes of either the Child Support (Assessment) Act
1989 (Cth) or the Family Law Act 1975 (Cth).6
Paternity and State Legislation
State and Territory legislation not only defines who the father of a child
is, but also who is not the father.7 Where a child is conceived as a
result of an artificial conception procedure, the sperm donor is conclusively
presumed not to be the
father of the child. Where the woman is married or in a
de facto relationship, (and in Western Australia and the Northern Territory,
this includes a same sex de facto relationship,8) and her partner
consents to the procedure, then her partner is presumed to be a parent of the
child.
The Assumptions behind Paternity
There are a number of assumptions behind paternity law. First it is generally
assumed that every child needs a father. Of course every
child does require some
male person to provide sperm in order for a pregnancy to occur, but this
assumption is that every child needs
a social father. The Prime Minister, John
Howard has said:
The issue here is the right of children in our society to have the reasonable
expectation, other things being equal, that they have
the care and attention and
love of both a mother and a father.9
There is also an assumption that the family is made up of two parents, the
mother and father and that there is no room (except in
Western Australia and the
Northern Territory, where both parents may be women) for any other
‘parenting’ model. In most
Australian jurisdictions, a child has
two, heterosexual parents and no more; and anything else is seen as a departure
from both the
norm and the best.
5 Family Law Act 1975 (Cth) s 60H.
6 Re B and J [1996] FamCA 124; (1996) 21 FamLR 186; Re Patrick [2002] FamCA 193; (2002) 28 FamLR 579.
7 Parentage Act 2004 (ACT) s 11(5); Status of Children Act 1978 (NT) ss 5D, 5F; Status of Children Act 1996 (NSW) s 14(2); Status of Children Act 1978 (Qld) ss 15, 18; Family Relationships Act 1975 (SA) ss 10(d), 10e(2); Status of Children Act 1974 (Tas) s 10C(1) and (2); Status of Children Act 1974 (Vic) ss 10C; 10D; 10E and 10F; Artificial Conception Act 1985 (WA) ss 6 and 7.
8 Status of Children Act 1978 (NT) ss 5DA; Artificial Conception Act 1985 (WA) s 6A.
9 ‘Transcript of the Prime Minister The Hon John Howard MP Radio
Interview With John Faine – 3L0 2 August 2000’
<http://www.pm.gov.au/news/interviews/2000/interview352. htm>
at 4 May 2005.
Artificial Insemination and the Nuclear Family
Where a child is conceived as a result of artificial conception, the majority
of Australian legislative schemes assume that the child
will be born into a
heterosexual nuclear family of mother, father and the children. Even in Western
Australia and the Northern Territory,
there is no room for a
‘father’, other than the mother’s husband. There is no
expectation that the biological father,
the sperm donor, will want to, or
should, play any part in the child’s life. Accordingly the sperm donor is
expected to be
an anonymous, philanthropic donor, who donates sperm for the
purpose of assisting some unknown couple to achieve their dream of having
children.
The presumptions in the legislative scheme governing children conceived via
artificial fertilisation procedures, and in particular
artificial insemination
displace the ‘the natural meaning’10 of the word father
and replace the biological father with social father (if there is one). The aim
is to ensure that the family of
mother and father and child born as a result of
artificial insemination is for all legal purposes equal to the family of mother,
father and child conceived by an act of sexual intercourse. Further
It enables a woman to have a child using sperm obtained from a man who is not
her husband, secure in the knowledge that that man will
not be able to interfere
in the life of her child. ... 11
This act of replacement may well be reasonable if we accept the view of the
Prime Minister that the heterosexual nuclear family is
the appropriate, and the
best, place to raise children. It may also reasonable, even without the
heterosexual prejudice, to recognise
that a man who is actively involved in a
child’s life is more appropriately described as a ‘father’
than a man
who donates genetic material essential for the child’s
conception, but who is otherwise not involved in the child’s life.
That
is, the social parent is more important than the biological parent.
The problem with all assumptions about what people want and how people will
behave, is that not everyone behaves as it is assumed
they will, and fixed
assumptions do not give sufficient recognition to choices that people may want
to make. Re Patrick12 is a case in point. The social parents
of Patrick were a lesbian couple, but the sperm donor was a known former friend
of Patrick’s
biological mother. The initial assumption, that a child will
be born into a heterosexual nuclear family, was clearly not met. Further,
whilst
the parents of Patrick may have believed the assumption that sperm donors
do
10 [1999] FamCA 446; (1999) 24 FamLR 635, 645.
11 Ganter v Whalland [2001] NSWSC 1101; (2001) 54 NSWLR 122, 130.
12 [2002] FamCA 193; (2002) 28 FamLR 579.
not want to be involved in the life of the child, their sperm donor did not
meet their expectations and looked for ongoing contact
with Patrick. He
ultimately sought, and was granted, orders in the Family Court to ensure
continuing contact. Contrary to the mother’s
expectations, the law did not
guarantee that the sperm donor would not ‘be able to interfere in the life
of her child.’13
The fact that the biological father in Re Patrick wanted to know the child he helped create does not appear to be unique. In his judgment Guest J referred to ‘a survey of 84 women attending the Sydney Lesbian Parenting Conference in 2000.’ That survey found that in 12% of cases, the sperm donor had a
‘sharing of parental responsibilities’; 33% of parents reported
some contact between the child and the donor; 22% had
regular contact and 13%
had extensive contact.14
In 2004 the Auckland Family Court gave a sperm donor shared guardianship
of the child produced by artificial insemination.15
A review of Australian donors advertising on ‘Sperm Donors
Worldwide’16 reveals 14 donors who of whom 11 indicated they
would want, at least, to be identified to the child as the sperm donor. Some
wanted
more, they said they would:
... not be a hands-on ‘father’ on a day-to-day basis, but would
still care for and love him/her. I would like to visit
him/her occasionally and
for him/her to eventually know that I am the biological father.
... like some involvement.
... like to be a known donor which could mean anything from co-parenting to
regular visitation, yearly meetings, or at least meeting
the child at 16 years
old, or earlier if he or she requests.17
What this shows is that although the majority of sperm donors may wish to
remain anonymous, a significant number want to know the
children that are
produced and to be involved in their lives. The assumption that all donors wish
to remain anonymous is not correct
for a significant number of donors and the
families who bear their children.
13 Ganter v Whalland [2001] NSWSC 1101; (2001) 54 NSWLR 122, 130.
14 Re Patrick [2002] FamCA 193; (2002) 28 FamLR 579, 651.
15 ‘Victory for Sperm donor’ The Age (Melbourne), 19 April 2004 <http://www.theage.com. au/articles/2004/04/18/1082226636127.html> at 6 June 2005.
16 <http://www.sperm-donors-worldwide.com/free_sperm_donations_australia.htm> at 4 May
2005.
17 That sample may of course be distorted by the fact that they are making
sperm available via the World Wide Web whereas donors
who want anonymity would
go to more traditional health clinics where their privacy might be
guaranteed.
In Re Patrick Guest J was concerned with a family created by a
homosexual couple. In that context he said that the Family Law Act 1975
(Cth) ‘... was drafted with a heterosexual model in mind and thus fails to
recognise the complexity of family forms that might
be created through
artificial insemination.’18 This failure ‘to recognise
the complexity of family forms’ is equally true whether the family is
homosexual, heterosexual
or a single parent family. As family forms change with
increasing numbers of single parent families and blended families it might
be
time to reassess all our presumptions about paternity and the ramifications of
the current law.
iii. chOiceS
The choice we should make
Clearly biological and social fathers are important and the law can, and
sometimes does, chose between them when deciding where paternal
rights and
responsibilities lie. It is arguable there is no need to make a choice at all
and we should accept that a child can have
more than one father and that both
the genetic and social fathers should be regarded as ‘fathers’
according to law. If,
however, we accept for the sake of the argument, that a
child can have only one father19 then the father should be either the
social father or the biological father.
The choice we do make
The problem with the current law is that it recognises two essential aspects
of fatherhood, the genetic and the social, but the distinction
upon which
paternity is based is neither of these, rather it is whether or not an act of
sexual intercourse took place. Sexual intercourse
is not, and should not, be the
definitive test of fatherhood so the law’s criteria for distinguishing
when the genetic and
when the social father is to be considered the lawful
father of the child is misplaced.
An example
Let us take as an example, Neville. Let us assume that Neville is the ideal
man with a PhD in astrophysics and several competitive
aerobics titles to his
name. Assume the following scenarios occur in Neville’s life:
1. Neville’s sister, Jane is a lesbian. To assist Jane and her
partner, Mary, to have a family, Neville agrees to donate sperm
to allow Mary to
conceive a child. They want to use Neville so there is some genetic
relationship
18 Re Patrick [2002] FamCA 193; (2002) 28 FamLR 579, 652.
19 Tobin v Tobin [1999] FamCA 446; (1999) 24 FamLR 635, 645.
between Jane and the resultant child. Neville engages in an act of sexual
intercourse with Mary as a result of which Mary falls pregnant
and gives birth
to Annabelle (“A”). Neville takes on his agreed role of
‘uncle’ with enthusiasm.
2. Neville likes the feeling of helping a couple to conceive, so he makes a
donation to the local sperm bank. With Neville’s
good looks and intellect,
he is a popular donor and very soon after his donation a child, Belinda
(“B”), is born to a
married couple.
3. Neville goes to a disco where he meets a young woman and they engage in
an act of sexual intercourse. They use contraception which,
unfortunately, fails
and Neville’s casual sexual partner falls pregnant. Neville indicates that
he has no interest in being
a father and offers to pay for, and support her
through, a termination of pregnancy; an offer which she declines. She eventually
gives birth to Christopher (“C”).
4. Finally Jane and Mary decide to have another child. Neville again agrees
to donate sperm and does so by ejaculating into a cup;
the sperm is introduced
to Mary’s body via a syringe. Mary again falls pregnant and gives birth to
David (“D”).
Again Neville takes on the role of uncle to D.
Neville is the lawful father of two children, that is Mary’s first
child, ‘A’ and the child born as a result of
the act of casual
sexual intercourse, ‘C’. He is not the lawful father of the other
two children, ‘B’ and
‘D’. The question that we need to
ask is ‘What makes the various cases similar or different and is that
sufficient
to justify the different legal position of Neville?’
Genetic issues
Clearly the genetic relationship between Neville and the four children is the
same. He is the genetic or biological father of each
child. Clearly it is not
genetics that is decisive when determining who the ‘father’
is.
Social issues
The social relationships are clearly different. In the case of
‘D’ Neville has an ongoing relationship with the child,
but it is as
‘uncle’. That relationship can give rise to standing in the Family
Court. Although the court could not order
him to pay child support,20
he would, if he can establish that he is ‘concerned with the care,
welfare or development of the child’21 have standing to apply
for a parenting order to ensure ongoing contact with D. Standing depends
on
20 Ibid.
21 Family Law Act 1975 (Cth) s 65C.
the fact that there is a relationship22 and the ultimate order
would depend on the court’s assessment of what is in the child’s
best interests23 but the result is that there is at least the
possibility of seeking the court’s assistance to continue the relationship
that
the parties agreed to and have established.
The situation is not the same for A. With respect to A, the intention is the same; that is A will be the child of Jane and Mary and Neville will be her
‘uncle’. Despite that clear intention Neville is the
child’s father and, again despite a clear intention to the
contrary,
Neville has ‘parental responsibility’ for A24 and the
primary duty to maintain A.25 Should Mary apply for child support,
Neville would be liable to support A even though that liability was never
intended. Neville would
have standing to apply for a parenting order, and in
considering the child’s best interests, the Family Court would have to
have regard to the underlying principles that:
(a) children have the right to know and be cared for by both their parents,
regardless of whether their parents are married, separated,
have never married
or have never lived together; and
(b) children have a right of contact, on a regular basis, with both their
parents and with other people significant to their care,
welfare and
development; and
(c) parents share duties and responsibilities concerning the care, welfare
and development of their children; and
(d) parents should agree about the future parenting of their
children.26
These rights can be enforced by and against both Mary and Neville. Despite
the fact that when the child was conceived, it was not
intended that Neville
would be a social parent he could apply to have A live with him or for contact;
Mary could apply for an administrative
assessment of child support27
and Neville would be obliged to provide that support.
Neville’s responsibilities as a parent to A may be very important if
Jane and Mary were unable to care for A, for example if
they were killed. In
this case A would be without her social parents, and Neville, because he is her
father,
22 Family Law Act 1975 (Cth) s 65C.
23 Family Law Act 1975 (Cth) s 65E.
24 Family Law Act 1975 (Cth) s 61C.
25 Child Support (Assessment) Act 1983 (Cth) s 3.
26 Family Law Act 1975 (Cth) s 60B.
27 Child Support (Assessment) Act 1989 (Cth) s 25.
would have an obligation to support and care for A. This is an obligation
that does not apply to D even though the genetic and social
relationships are
the same.
With respect to child B, under State, Territory and Federal law, Neville is
not the father of the child.28 Regardless of what happens to that
child, Neville has no standing to seek a parenting order, and no obligation to
support the child.
With respect to child C, as with child A, Neville is the child’s father
with all the rights and responsibilities imposed by
law. There is however a
difference here between A and C. In the case of the conception of A, Neville
intended, in fact desired, that
a child would be conceived and born. It was his
objective, as it was with the conception of children B and D, to see that a
child
was born.
With respect to child C it was clearly not his, or his partner’s,
intention to have a child conceived and born. In this case
they used
contraception to try and avoid a pregnancy. Once the child was conceived, the
choice of whether or not to terminate the
pregnancy was hers and hers alone. He
could neither force her to have a termination, nor could he force her not
to.29 Her choice, however, determined his rights, obligations and
liability. Once the child was born he can be liable to maintain the child
as
well as having parenting rights and responsibilities. These rights and
responsibilities can be enforced against the wishes of
either party, so he could
seek orders relating to residence and contact even though she might wish him to
have no contact with the
child or with her. He can be forced to make a financial
contribution to the welfare of the child, even though he has no contact and
did
not want the pregnancy to proceed. His wishes, and hers, are irrelevant in
determining legal rights and responsibilities vis-à-vis
the child and
each other.
iv. what ShOULd Be the teSt?
The difference in the various legal positions is determined not by genetics,
social role, or intention but by whether or not an act
of sexual intercourse
took place. With respect to children A and C the child was conceived after an
act of sexual intercourse and
so Neville is the child’s father. In the
case of children B and D there was an artificial conception procedure and so he
is
28 Parentage Act 2004 (ACT) s 11(5); Status of Children Act 1978 (NT) ss 5D, 5F; Status of Children Act 1996 (NSW) s 14(2); Status of Children Act 1978 (Qld) ss 15, 18; Family Relationships Act 1975 (SA) ss 10(d), 10e(2); Status of Children Act 1974 (Tas) s 10C(1) and (2); Status of Children Act 1974 (Vic) ss 10C; 10D; 10E and 10F; Artificial Conception Act 1985 (WA) ss 6 and 7.
29 In the marriage of F and F (1989) 13 FamLR 189.
not the father. It does not matter that in the case of D the procedure was
not medically supervised, it was an artificial conception
procedure and the
legal consequences follow.30
Whether or not an act of sexual intercourse takes place should not be the
defining test for fatherhood. The appropriate choice, if
a choice has to be
made, should be based on either genetics, or social responsibility and
intention. The consequences of these options
are considered below.
All biological fathers are fathers
We know from the experience with adopted children that children do want to
know who their biological parents are. Children may have
a significant interest
in tracing their genetic background to determine something about who they
are.
Psychologists have recognised a condition of “genealogical
bewilderment” which children can experience if they are unable
to discover
their full geological ancestry. ... it is important for individuals to have a
“sense of continuity” which
derives from knowledge of their
“origins”.31
This need has been recognised by commentators32 and in Victoria
where the Infertility Treatment Act (Vic) permits children born as a
result of artificial conception procedures to obtain information, including
identifying information,
about their donor parent.33
If we adopt a biological test, then the biological father of a child,
howsoever conceived, should be recognised as ‘a’
father of the
child. This does not however, mean that the biological father will have instant
rights and/or responsibilities. It
will still be the case that families can
negotiate the role for each party in the family.
Where a child is conceived by artificial insemination and born into a family
that is capable of supporting that child, then there
is no obligation upon the
donor to be involved in the child’s life. Life would be just as it is for
most artificial insemination
families. Recognition of biological parenthood
would do no more than give the donor standing but should a sperm donor appear
after
many years and demand some involvement in the child’s life, that
could
30 B v J [1996] FamCA 124; (1996) 21 FamLR 186; W v G (1996) 20 FamLR 49; Re Patrick (2002) 28 FamLR
579.
31 Gabrielle Wolf ‘Frustrating Sperm: Regulation of AID in Victoria under the Infertility
Treatment Act 1995 (Vic); (1996) 10 AustralianJFamL 71, 74-75.
32 See Helen Gamble ‘Fathers and the New Reproductive Technologies: Recognition of the
Donor as Parent’ (1990) 4 AustralianJFamL 131, 140-141.
33 Infertility Treatment Amendment Act 1995 (Vic), s 79.
be resisted by the social parents on the basis that such contact would not be
in the child’s best interests. Should it be necessary,
the court would
have to determine that issue but it can be predicted that, as is currently the
case, it would be ‘... the social
and not the genetic relationship of a
parent ... [that will be] the most influential in
court.’34
On the other hand, recognition that biological parenthood is an important
factor, then, as in Victoria, children born as a result
of artificial
insemination would have a right to access information about their father
including identifying information. Further,
if a man is a father of a child then
he would have an obligation to maintain that child should that be necessary.
Again that obligation
would not be automatic, where the social parents are able
to provide for the child’s needs there would be no need to involve
the
biological father. If, on the other hand, the social parents fall on hard times
then the child and/or his or her social parents
could look to the biological
father for support. Guest J said that a legislative provision that presumes a
sperm donor is not a father
is readily understood [because] to encumber a donor, for example, with
financial responsibility for child support pursuant to the
provisions of the
Child Support (Assessment) Act 1989 ... would be fundamentally
wrong...35
It is not clear, however, why it would be fundamentally wrong. Here we have a
man deliberately and intentionally contributing to the
birth of a child. We
would think it fundamentally wrong for a man to turn his back on the needs of
children born as a result of an
act of sexual intercourse, including casual
sexual intercourse and such an action is not permitted under current law. A man
may be
required to pay child support for any child conceived after an act of
sexual intercourse,36 regardless of any express agreement to release
him from that obligation37 and regardless of any clear evidence that
it was not his intention to father a child. Why then should a man who knowingly
contributes
to the birth of a child not accept some responsibility for the
welfare of that child should the child have needs that he can contribute
to?
The consequences of this argument, if adopted, is that sperm donors would not
be guaranteed anonymity nor freedom from financial responsibility
for the
children they conceive. This may well mean that less people are willing to
donate sperm but if that means only men who are
prepared to take some
responsibilities for their reproductive decisions then that may be
better.
34 Supra n 32 at 143.
35 Re Patrick [2002] FamCA 193; (2002) 28 FamLR 579, 640.
36 Child Support (Assessment) Act 1983 (Cth).
37 B v J [1996] FamCA 124; (1996) 21 FamLR 186, 195; Re Patrick [2002] FamCA 193; (2002) 28
FamLR 579, 648.
Holding all biological fathers at least to some degree responsible for the
children they help create would guarantee that men do not
see sperm donation as
a way to have ‘... an informal relationship with biological children
without having legal [or financial]
responsibility for them.’38
As we have seen, under current law, a man can donate sperm using an
artificial conception procedure with the clear intention that
he will be
involved in the child’s life, perhaps as an ‘uncle’ or even
identified as the child’s father.
That man may establish a relationship
with the child that can be enforced with parenting orders,39 but he
is absolved from any financial obligation to maintain the child regardless of
the child’s needs.40
We would consider that a man who wanted to father as many children as
possible, for whatever reason, as somewhat morally questionable,
regardless of
how children were conceived. The current law may well encourage men to show some
degree of sexual responsibility, knowing
that if their sexual partners become
pregnant, that may have considerable financial and emotional consequences. We
require no such
responsibility from sperm donors who may donate many times, to
create many children. Their motivation may be generous (as may be
the man who
agrees to have sex with a friend so that she may fall pregnant) or it may be a
questionable desire to see his genes reproduced
as much as he can. One sperm
donor on ‘Sperm Donors Worldwide’ said:
I have done this before and am a regular donor at some hospitals and clinics
in Melbourne, as well as some private encounters-all
children are healthy and
adorable...41
We would not condone as morally worthy a man who could say he had six
children to six different mothers, yet here is a man quoting
the number of
children he has produced as a testimonial.
To allow men to knowingly contribute to the birth of children, with no
accountability and with no obligation to take some responsibility
for the
welfare of the children they produce is, surely, more ‘fundamentally
wrong’ than suggesting that they may have
a responsibility to the children
they consciously, and voluntarily agreed to produce, should the need
arise?
38 Supra n 31 at 77.
39 As in Re Patrick [2002] FamCA 193; (2002) 28 FamLR 579.
40 W v G (1996) 20 FamLR 49; Tobin v Tobin [1999] FamCA 446; (1999) 24 FamLR 635.
41 <http://www.sperm-donors-worldwide.com/free_sperm_donations_australia.htm> at 12
April 2005, 8.
Social fathers and parenting plans
The Hon Justice Alistair Nicholson, former Chief Judge of the Family Court
said ‘In my view, it is not procreation that defines
a family
relationship, it is the commitment and the financial and emotional
interdependence of family members.’42 Further:
Social science research has suggested that parenthood is a psychological
relationship that should be understood from the perspective
of the child, and
that while biology is important psychological or social attachments are of at
least equal, it not more significance.43
Accordingly recognising that the man who voluntarily and willingly takes on
the role of ‘father’ and who forms a father/child
relationship with
the child that he, along with the child’s mother sought to have, gives
effect to what we expect is the intention
of everyone involved and reinforces
the central place of the heterosexual nuclear family.
Currently the law does not allow parents of children to determine their
rights and responsibilities by way of contract.
The notion that a party can by agreement contract out of a statutory right to
maintenance has been rejected by High Court doctrine
in the context of contracts
to exclude statutory rights to maintenance on divorce in Brooks v Burns Philp
Trustee Co Ltd and in that of agreements to forego testators’ family
provision in Lieberman v Morris. Public policy is opposed to the
surrender of such rights especially where the beneficiary becomes a charge on
the public purse.44
In B v J Fogarty J said:
... it is, in my view, untenable to suggest that an otherwise liable parent
may contract out of liability for child support, or that
an otherwise entitled
parent may waive a “right” to assistance for support of his or her
child.... as a matter of logic
it would appear to apply equally to cases where a
child is born as a result of intercourse, in the context of an agreement that
one
of the parties would bear no financial responsibility. The considerations
said to give rise to an estoppel would exist regardless
of the method of
conception. Such agreements or representations would not be enforced in
Australia.45
42 Alastair Nicholson ‘The Changing Concept of Family: The Significance of Recognition and Protection’ (1996) 3 Murdoch University Electronic Journal of Law [54] <http://www. murdoch.edu.au/elaw/issues/v3n3/nicholso.html> at 18 April 2005.
43 Fiona Kelly ‘Redefining Parenthood: Gay and Lesbian Families in the Family Court – the
Case of Re Patrick’ (2002) 16 AustralianJFamL 204, 206.
44 Dorothy Kovacs ‘The AID Child and the Alternative Family: Who pays? (or Mater semper certa est – That’s easy for you to say!) (1997) 11 AustralianJFamL 141, 157.
45 Re B and J [1996] FamCA 124; (1996) 21 FamLR 186
In Re Patrick Guest J said:
An agreement absolving a father from the obligation to pay maintenance for a
child would not be enforceable either directly or by
way of estoppel. Nor would
an agreement absolving the father from any other aspect of parental
responsibility. Equally, a written
agreement which provided for a donor to have
frequent contact with a child could not prevail over a finding by the Court, in
a given
case, that contact was not in the best interests of the particular
child.46
Notwithstanding these rules, the decision in Re Patrick did at least
in part, depend on a finding that the parties had agreed that the sperm donor
would have ongoing contact with Patrick
Fiona Kelly in her analysis of this case
made the point that:
In making his decision about contact Guest J gave considerable weight to the
agreement between the parties. While he stated that the
agreement was not
binding on him ... his decision to award contact rested heavily on his finding
that the donor father had donated
his genetic material upon an understanding
that he was to have a role in the life of any prospective
child.47
In W v G the court could not order the sperm donor to pay child
support for the benefit of the child as he was not, legally, the child’s
father. The court did however, order the mother’s lesbian partner to pay
child support on the basis that it would be inequitable
to allow her to avoid
the obligation given that she had encouraged the mother to conceive the child
and had promised that she would
act as a co-parent and would contribute to the
raising of the child. The court was specifically giving effect to the promise
between
the parties.48
The model for resolving parenting disputes in the Family Court is to
encourage parents to make their own agreements as to parenting
and child
support49 though agreements may be varied by the Court where that is
required in the child’s best interests.50
Dorothy Kovacs argues that:
... it is too late in 1996 [and more so in 2005] to say that it is against
public policy to absolve a donor from the obligation for
child support, when for
more than a decade state laws have provided that a donor has no rights and no
obligations in respect of a
child born as a result of donation. Accordingly the
argument may be put that a contract between consenting adults
whereby
46 Re Patrick [2002] FamCA 193; (2002) 28 FamLR 579, 648.
47 Fiona Kelly ‘Redefining Parenthood: Gay and Lesbian Families in the Family Court – the
Case of Re Patrick’ (2002) 16 AustralianJFamL 204, 211.
49 Family Law Act 1975 (Cth) ss 63B and 63CAA.
50 Family Law Act 1975 (Cth) s 63F.
the man agrees to provide semen on condition that the woman will keep him
safe from child support obligations should not in an appropriate
case be seen as
offending public policy.51
In 2005 it would be appropriate to allow clear statements of intention and
express contracts to determine the legal status of family
relationships. The
importance of agreements has already be recognised in W v G52
and, at least in part, in Re Patrick. In other cases, the
court’s inability to give clear effect to people’s clear intention
has been the subject of criticism.53
Kelly argues that ‘child support liability in gay and lesbian families
should be based on a social parenting model that reflects
the child’s
actual family structure rather than biological ties.’54
Arguably the same conclusion should also apply to heterosexual families.
In In the matter of an application pursuant to the Births Deaths and
Marriages Registration Act355 and in PJ v DOCS56
the courts were faced with a-typical heterosexual families where children
were born via a surrogacy arrangement. Here again the court
could not determine
who was the child’s parents using a ‘model that reflect[ed] the
child’s actual family structure
rather than biological ties.’ Here
legal rules surrounding conception and parenting presumptions meant that the
men, who were
both the social and biological fathers were not at law the fathers
of their children. The legal parents in the first case where the
husband’s
brother and his wife; and in the second case the mother’s own parents. If
parenting responsibilities were based
on ‘a social parenting model that
reflects the child’s actual family structure rather than biological
ties’57 then the two couples, who wanted to have a child and
who were concerned with raising the child in an otherwise traditional
heterosexual
family would have been for all purposes, the parents of the
children they were raising.
If we allow families to define their own relationships then parents, social
and biological, could negotiate their degree of involvement
in the lives of
their families. It would allow parents, regardless of how their child is
conceived, to determine how they will parent
the resulting child – even if
that agreement is that one party (usually the father) will have no rights or
obligations.
51 Supra n 44 at 159.
52 W v G (1996) 20 FamLR 49.
53 PJ v DOCS [1999] NSWSC 340 (Unreported, Windeyer J, 6 April 1999); In the matter of an application pursuant to the Births Deaths and Marriages Registration Act 1997 (2000)
[2000] ACTSC 39; 26 FamLR 234.
54 Supra n 47 at 225.
55 [2000] ACTSC 39; (2000) 26 FamLR 234.
56 [1999] NSWSC 340 (Unreported, Windeyer J, 6 April 1999).
57 Supra n. 54.
To return to the example of Neville he has never intended to be a
‘father’ or have any involvement in the lives of the
children
‘B’ and ‘C’. He is not the father of ‘B’ as
the conception was a result of artificial
insemination but he is the father of
‘C’ even though he did not intend to be a father. Further his legal
obligation to
‘C’ may mean an enforced relationship with C’s
mother even if neither of them desires that relationship. Neville
may seek
parenting orders and C’s mother may seek, and may be forced to seek under
Social Security provisions, child support
from Neville.
Again, Kelly argues that in homo-nuclear families, to require the biological
father to pay child support ‘...would undermine
the independence and
boundaries of the homo-nuclear family unit.’58 This is not only
true for homo- nuclear families. Where the law insists that there is a
relationship between biological parents and
their children, it undermines the
self selected boundaries of the family, whether homo-nuclear, hetero-nuclear or
single parent.
If we allow parties to negotiate their own family arrangements,
Neville, and his casual sexual partner, could agree that he has no
obligations
and she need not be forced to have an ongoing relationship with him, that
neither of them want.
Some may find this consequence ‘fundamentally wrong’ as it would
allow Neville, having engaged in an act of sexual intercourse
with the inherent
risk that a pregnancy will result, to avoid any responsibility for his actions.
As we have already seen however,
Neville has no responsibility, at least no
financial responsibility, with respect to A, B or D even though in each case it
was his
intention that a child would be conceived and born. Is there any moral
difference in these cases? In A v C59
... Ormrod LJ described the relationship between an AID father and the child
in a ... colloquial way when he said there was “some
difference, but not
much, between this case and that of a man who gets a girl pregnant in a casual
act of intercourse on the way
home from the pub one
night.”60
If it is true that there is no significant difference between a sperm donor
and a casual sexual partner, then the legal consequences
for both should be the
same. Either the father of a child conceived through an act of sexual
intercourse may be excused from obligations
to the child or the biological
father should have paternal obligations regardless of the method of conception.
If we allow Neville
to be excused from any responsibility for his decision to be
the biological father of A, B and D, then there is an equal, if not
stronger
case, to excuse him from responsibility toward C where he simply made a decision
to have sex, not to be a father. On the
other hand, Neville is the genetic
father of
58 Supra n 47 at 226.
60 Supra n 32 at 137.
all the children, so if we refuse to allow Neville to escape his
responsibility for child C, on the basis that he knowingly engaged
in an act of
sexual intercourse and must be responsible for the foreseeable but unintended
consequences of his actions, then he should
be at least equally responsible in
those cases where the birth of a child was not only foreseen it was
intended.
Finally to give priority to the biological nature of fatherhood, ahead of the
social, can lead to disturbing results. In Magill v Magill61
Mr Magill attempted to sue Mrs Magill in deceit when he discovered that he
was not the biological father of 2 of her 3 children. The
children at the time
of the action were 13 and 14 years old and presumably Mr Magill, their social
father, had developed an emotional
relationship with the children as well as
paying child support for them since his separation from his wife 3 years
earlier. Notwithstanding
this, his evidence was
... that it was his belief that he was the [biological] father that caused
him to provide the financial and emotional support for
the children ... [and]
had he known their paternity he would not have maintained the two
children...62
We do not know what sort of relationship there was between Mr Magill and
‘his’ children, but there is something repugnant in thinking that a person who has been involved in children’s lives, and who is, to them, their ‘father’ can say that he has no further obligation to them simply because of their biological paternity. Whether that consequence is desired by an estranged wife who wants to exclude her former husband from the life of the children, or an estranged husband who suddenly finds he can free himself of family demands, to sever an emotional relationship on such grounds cannot be in the child’s best interests. Equally if a social father has encouraged a certain lifestyle, eg funding a private school education and/or expensive hobbies for
‘his’ children, to suddenly leave them destitute because you
discover they are not ‘your’ children is to deny
the lived
experiences of the family and the best interests of the children concerned.
Whilst it is possible to have some sympathy
for a man who has been knowingly
deceived by his partner, it reflects more on the husband/wife relationship than
the father/child
relationship. If we are offended by Mr Magill’s claim
that he only offered ‘financial and emotional support’ because
of a
belief in a biological relationship, then that offence is because of a belief
that it is the emotional relationships and not
biology that is the important
aspect of ‘being’ a father.
61 [2005] VSCA 51 (Unreported, Ormiston, Callaway and Eames JJA, 17 March 2005).
62 Ibid, 82.
v. mUSt we chOOSe?
Perhaps we do not need to make a choice at all. Guest J, in Re Patrick
said:
Children conceived via artificial donor insemination may have only two
mothers, others ... may have two mothers and a father, and
others, may have two
mothers and two fathers. In a rare number of cases a child may have only two
fathers.63
He argued that:
... consideration should be given to review the definition of
‘parent’ ... to take into account that there are varying
arrangements between donors and prospective mothers, and that donors such as the
father in these proceedings may not only consider
themselves a
‘parent’, but may also be considered by the recipient of the genetic
material to be a parent.64
On this view, we can and should recognise that both the biological and social
father is a ‘father’ but with differing
degrees of involvement with,
and responsibility for, the child. The law and the courts need only be involved
when there is disagreement.
It would be possible, with legislative changes, to acknowledge that both
biological and social parents have obligations to children
that they conceive or
voluntarily take responsibility for. This could be done first by retaining the
presumption that a man who consents
to his wife becoming pregnant via artificial
insemination is ‘a’ father, but so, is the sperm donor.
Equally we could acknowledge that a man who has been a social father to a
child has rights and responsibilities with respect to that
child. That is
already done with respect to parenting orders. As we have seen the donor in
Re Patrick65 could obtain a parenting order, not because he
was the child’s father but because he had an ongoing relationship with the
child
and it was, in the Court’s opinion, in the child’s best
interests for that relationship to continue. The court is not
limited, when it
comes to parenting orders, to make orders only in favour of the biological
father, but can make orders for the benefit
of anyone who can show they are
‘concerned with the care, welfare or development of the
child’.66 The donor in Re Patrick67 could
not, however, be liable to pay child support.
63 Re Patrick [2002] FamCA 193; (2002) 28 FamLR 579, 651.
64 Ibid, 647-648.
65 [2002] FamCA 193; (2002) 28 FamLR 579.
66 Family Law Act 1975 (Cth) s 65C.
67 [2002] FamCA 193; (2002) 28 FamLR 579.
In the area of child support, recognising that it is the man who plays the
role of ‘father’ who should be regarded as
the legal father is not
foreign to the law. There is an exception to the rule that only parents68
can be required to pay child support.69 A step-parent, or for
our purposes, a step-father (a man who is not the father of the child but who
is, or was married to a child’s
mother and who ‘treats, or at any
time during the marriage treated, the child as a member of the family formed
with the [mother]’70) may be liable to pay child
support.71 When determining whether or not a step-parent should pay
child support, the Court must have regard, inter alia, to the
‘relationship
that has existed between the step-parent’ and the
child.72
To bring parental orders into line with child support orders it would be
possible to give the court the power to make orders for child
support against
anyone who had taken on a parenting role, not just step-fathers. When exercising
that jurisdiction the court could
be required to take into account the factors
currently considered when deciding whether a step parent should pay child
support, these
would include:
1. the relationship that has existed between the step-parent and the child;
and
2. the arrangements that have existed for the maintenance of the child;
and
3. any special circumstances which, if not taken into account in the
particular case, would result in injustice or undue hardship
to any
person.73
Should it be felt that a jurisdiction to order anyone who is ‘concerned
with the care, welfare or development of the child’74 to pay
child support is too wide, a more narrow jurisdiction could be given. In
Tobin v Tobin75 counsel argued that the Court had the power to
order any person who obtained a parenting order to pay child support. The Court
found
that it did not have that power but it would be possible to grant that
power via legislative changes. If the court did have that
power any person who
was not a child’s biological father who
68 That is the biological parent as well as a man who has legally adopted a child (Family Law Act 1975 (Cth) s 60D) and the husband of a woman who, with his consent, conceives via artificial insemination using donor sperm (Family Law Act 1975 (Cth) s 60H.)
69 Tobin v Tobin [1999] FamCA 446; (1999) 24 FamLR 635, 648.
70 Family Law Act 1975 (Cth) s 60D.
71 Family Law Act 1975 (Cth) s 66M.
72 Family Law Act 1975 (Cth) s 66M(3)(c).
73 Family Law Act 1975 (Cth) s 66M.
74 Family Law Act 1975 (Cth) s 65C.
sought parenting orders would also know that with parenting
‘rights’ come parenting responsibilities and the class of
people who
could be ordered to pay child support would be clearly defined. In terms of
‘fathers’ that would be:
1. The biological father;
2. The adopting father;76
3. A man who consents to his wife becoming pregnant via artificial
insemination; and
4. Any man who obtains a parenting order.
With these changes to the jurisdiction of the Family Court, it would be
possible for the court to make both parenting and child support
orders that took
into account the actual lived experiences of children, and their parents,
however conceived.
vi. cOncLUSiOn
This paper has argued that when it comes to fatherhood, the choices made by
the law are inappropriate. If necessary, it is reasonable
to hold that paternal
rights and responsibilities should attach to either the biological father or the
social father. It has been
shown, however that the law does not allow that
choice to be made. ‘Fatherhood’ is based on whether or not the child
is conceived via an act of sexual intercourse or artificial conception
procedures. This choice could be acceptable if all families
fitted the
heterosexual model, with mother, social father and anonymous sperm donor however
it is clear that people do not always
fit the mould set out for them, and so in
many cases the law has been unable to give effect to the lived experiences,
desires and
intentions of the parties involved.
If a choice has to be made, that is if we cannot accept that children can
have more than two parents of whatever gender, then we should
make the choice on
either biological or social grounds. If we chose biological, then all biological
fathers must accept responsibility
for the children conceived using their sperm.
Sperm donors, like sexual partners, would have standing to seek parenting orders
but
would also have financial obligations to their children. As in any legal
matter the extent of the responsibilities is not set in
76 It is possible to make a strong argument that where an adoption occurs
the biological parent is excluded from the life of the
child and is therefore no
longer liable to pay child order of adoption is intended to replace the
biological relationship and is
an court order that takes into account the
child’s best interests, but developing that argument is beyond the scope
of this
paper.
advance; if the donor wants nothing to do with the child and the social
parents are happy with that, then so be it. It is only if
the parties cannot
agree on the parenting arrangements, or the child is in need of financial
support, that the various legal authorities
such as the Family Court and/or the
Child Support Agency would be involved.
If we chose the social father, then it is the lived experience that is
relevant. The man who takes on the role of ‘father’,
just as the
woman who takes on the role of co-parent in a lesbian family,77
should be accountable, and take responsibility, for the children he has
‘fathered’, regardless of their biological background.
The promise
to parent, and its impact upon the co-parent, and more importantly the children,
should be paramount.
The alternative is to make no choice at all, to recognise that children can
have many parents, with differing relationships with them
all and, in the event
of disputes, to determine where different responsibilities and obligations lie
on a case by case basis looking
at the equity of the particular situation and
the best interests of the child.
Whatever of these three options is the best, the problem is that none of them
are part of the current law. The current law says that
one’s paternal
responsibilities are dependant upon where one ejaculates, and that makes no
sense at
all.
77 W v G (1996) 20 FamLR 49.
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