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1. Introduction

1.1 New Zealand law has rules for determining who is and is not a legal parent of a child. This discussion paper reviews these laws (for adequacy) in light of continuing and significant changes in family structures in New Zealand and the impact of new reproductive technologies.

Two-parent cohabitation model

1.2 The laws in New Zealand on parental status are underpinned by the premise that a child’s genetic mother and father will raise the child together.

1.3 In the instances where the reality has been different, the law has generally made adjustments to fit the non-conforming situation into the standard model. For example, where children could not be looked after by their genetic parents and others assumed lifetime responsibility for the child’s care, the law developed the concept of “adoption”, which “deemed” the substitute parents to be the child’s legal parents in nearly all respects. Birth parents lose their legal status as genetic parents in adoption and are relieved of all responsibility for the child’s care and upbringing. The child’s birth certificate is altered by removing any reference to the genetic parents and showing the adopting parents as the child’s genetic and legal parents.

1.4 A similar deeming mechanism has been used to reallocate parenthood in donor gamete conception[1] where couples experiencing infertility use donor sperm, eggs or embryos to conceive a child. The non-genetic male partner is deemed to be the child’s parent in all respects. The birth mother, if she has conceived using someone else’s eggs, is deemed to be the mother in all respects. At the same time, the law extinguishes the natural parenthood of the genetic parents without trace. They are deemed not to be parents of the child. The non-genetic partner’s name appears on the birth certificate as a legal parent. Unlike adoption, where the genetic parents are initially named but then removed, genetic parents are never named on the birth certificate in donor gamete conception situations.

1.5 These deeming provisions, by which substitute parents replace the child’s genetic parents, maintain the traditional mother/father model and operate to ensure the child’s family reflects a model of two opposite-sex parents.[2] This family model, which is based on the English origins of our legal system, has generally worked well for traditional nuclear families where the children are being cared for by their cohabiting genetic parents.

Changes to family structures: donor gamete conception and social change

1.6 Over the past two-to-three decades, there have been vast changes to our social structure and, in that same period, new birth technologies have become available.[3] These factors raise important questions about the continuing feasibility and appropriateness of constructing parental rights and responsibilities in all situations within this framework. There are many families now who do not fit easily within the traditional model.

1.7 A number of children in New Zealand are now conceived using donor eggs, sperm or embryos. Children are being born into surrogacy arrangements that have been entered into between a gestational mother and commissioning parents (either or both of whom may be genetic parents to the child). Others are born into gay and lesbian families. These social and technological changes mean that some children are now cared for by two parents, one or both of whom are not their genetic parents, and who may be of the same sex. Other children have three or more adults as parents sharing responsibility for their care and upbringing.

1.8 In these situations, parenting of children from birth may involve genetic/non-genetic parent combinations. In some combinations the law currently affords no legal status to the social (caregiving) parents. A common element in all the situations considered in this paper is the juxtaposition of genetic and social parenthood. At least one of the social parents is not a genetic parent or, if a genetic mother, is not the gestational mother.[4]

Records of genetic lineage

1.9 Many New Zealand children have no official record of their genetic lineage. Birth certificates may be thought to provide that, but they do not always do so and the information is not always accurate or complete. Six per cent of children born each year have no genetic father recorded on their birth certificate. Other children have persons named as parents who are not their gestational or genetic parents, though this fact is not usually disclosed on the birth certificate.[5] Birth certificates give the name and details of the adoptive parents or of persons deemed to be the parents of children born as a result of donor gamete conception.

Mäori customary laws

1.10 New Zealand’s laws as to parental status have never reflected the customary laws and practices of Mäori.[6] Children are often placed temporarily or permanently in the care of family members other than their genetic parents under a whängai (kinship care) arrangement. Sometimes, placement is made to provide a child for persons who are infertile. The matua whängai (kinship caregivers) often have greater rights and responsibilities in relation to the child than do the genetic parents.

1.11 For Mäori, genetic parents have no exclusive rights to possession of their children – they hold them in trust for the whänau, and the wider hapü and iwi. A Mäori child’s knowledge of their whakapapa is critical to their sense of identity and place in the world. Though they may not live with their genetic parents they will always know who they are and will usually have contact with them. Their whakapapa enables them to understand how they are connected to their ancestors and members of their living whänau, hapü and iwi.

1.12 The Term of Reference that requires us to consider whether the legal presumption that a child have no more than two parents identified in law may seem radical, but, from a Mäori cultural viewpoint, it is quite normal for a child to have kinship carers who are no less important than the genetic parents.

Terms of Reference

1.13 Our Terms of Reference call for us to review the legal rules by which parental status is determined. We consider how, and the extent to which, the relationship between children and their genetic parents should be recognised and how parental rights and responsibilities should be allocated between affected adults. We also consider what changes or new legal mechanisms may be necessary to ensure that persons bringing up children as parents, whether or not they are genetic parents, have the appropriate legal recognition and support in this role.

1.14 We are required to consider the assumptions underlying the current law; how parental status should be determined in law, and, particularly, the values to be ascribed to a person’s social or caregiving relationship with a child, a person’s genetic relationship with the child and a woman’s gestational relationship with her child.

1.15 We are also asked to consider whether the law’s assumption that a child have two parents be changed; whether the law should permit a child to have only one parent recognised in law; what processes and evidence there should be to prove and disprove parenthood; what the effect of disproving parenthood should be, what the legal effects of surrogacy agreements should be as they relate to parental status; and what value the law should attach to agreements between adults as to parenthood.

1.16 Our approach has been to identify those categories of adults and children whose needs and interests are not met by the law’s operation and so are most likely to be affected negatively by the current legal rules as to allocation of parental status and responsibilities. These include:

• gamete donors and children conceived by gamete donation;

• all involved adults and children conceived in surrogacy arrangements;

• gay and lesbian families.

1.17 The question to consider in each case is how should the law recognise or not recognise the parental status of the interested persons. We also review the presumption of paternity, how to have more fathers named on birth certificates and posthumous fathers.

1.18 Should the legal status of parenthood be the exclusive preserve of genetic parents with some other legal status going to all non-genetic caregivers? Should the law bestow legal parenthood on all who care for a child on a permanent basis from birth? If so, how should the law do this? What is the appropriate model? Should the law be able to recognise more than two persons as “parents” of any child? Should a child be able to have only one parent recognised in law? Should a birth certificate record genetic parents only? If it records names of substituted parents, as in adoption and donor conceptions, should it indicate that the social parents are not the genetic parents? Does the law give sufficient recognition to agreements reached between people who have a legitimate interest in the care and upbringing of a particular child?

1.19 Issues surrounding parental status where the legal framework is not clear have the potential to be fraught and troublesome and may impact negatively upon the children concerned.[7] The courts have already dealt with cases in these areas where the law is uncertain and have called upon government to attend to these issues.

Overarching principle: children’s needs and interests

1.20 Parental status laws must reflect the interests and needs of children because these are paramount. Laws must be constructed around the welfare and best interests of children, rather than the rights of adults.

1.21 Children have a fundamental need to be loved and nurtured by adult caregivers in a consistent and caring manner. Clearly, this does not require that children be parented by their genetic parents. Children have, since the dawn of history, been cared for by people other than those responsible for bringing them into the world.[8] As with genetic parents, the responsibilities and commitment that these social parents assume is vital to the child’s well-being and development and is of enormous social value.

1.22 Currently, the law recognises non-genetic parents as “legal parents” in two situations: adoption and donor gamete conception.[9] For all other situations, non-genetic parents can acquire legal rights and responsibilities by means of a guardianship or custody order from the Family Court. People who are responsible for actual parenting, particularly when they have assumed this role since the child’s birth or early childhood may, with some justification, see guardianship or custody as a lesser status than that of legal parenthood.

1.23 Whereas legal parenthood creates a life-long link between parent and child, guardianship and custody orders continue only until the child reaches the age of 20 years[10] (proposed to be reduced to 18 years).11 Guardianship and custody orders do not give the child rights of inheritance from the guardian or custodian. These can be revoked at any time by court order. It could be argued that guardianship and custody do not give the social parents or the child the sense of permanence and connectedness that facilitates bonding and attachment. If the social parents feel insecure in their relationship with the child this may undermine the child’s sense of security and permanence.

1.24 It might also be argued that the contribution of social parents gives them a greater claim to parenthood than, for example, the genetic father whose only contribution is an act of sexual intercourse with the mother or the woman who has handed the child to others to care for immediately after the birth. On this argument, it would follow that social parents should have no lesser status than that of the genetic parents.

1.25 At the same time, the critical importance of genetic lineage to a child’s sense of identity is being increasingly recognised internationally. Laws that create fictional parenthood and extinguish the child’s ties with the genetic parents have come under scrutiny. In New Zealand and elsewhere, many children who were adopted or conceived with donated gametes are articulating a need to know their birth origins and “whakapapa”. These children have been precluded from gaining knowledge of their entire blood line, not just their genetic parents. This has left a gap in their sense of identity. Besides its significance for their sense of personal and cultural identity, this information may be vital to the health and well-being of these children because it will enable them to complete their medical history and give them reassurance that they are not marrying or partnering within the lines of consanguinity.

Matters excluded

1.26 This paper does not enter into the debate about the contested care of children. It does not examine the laws and procedures by which the care of children after parental separation is determined. Step-parenting, foster parenting and the legal recognition of whängai are not discussed here either.

Bills before Parliament

1.27 Currently, there are two Bills before Parliament that interconnect with some of the issues discussed in this paper. These are the Supplementary Order Paper to the Human Assisted Reproductive Technology Bill 2003 (HART Bill) and the Care of Children Bill 2003. We set out their provisions where they impact upon the issues raised in our Terms of Reference.

Conclusion

1.28 As a result of the review, we hope we can recommend sound legal changes to New Zealand’s parental status laws that will ensure that all children are born into families where the adults involved in their conception, birth and upbringing have legal clarity and certainty in relation to their responsibilities for, and rights in relation to, the child. The proposals will need to ensure social parents can parent effectively and in a manner that supports bonding, security and belonging between them and their children. The proposals will also need to preserve for children access to their genetic lineage. Legal frameworks around parent–child relationships provide critical support to the family unit. By supporting the family unit we are supporting the child.


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