New Zealand Law Commission
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3.1 Donor gamete conception is one aspect of Assisted Human Reproduction (AHR), which is the collective name for a range of procedures used to assist couples or individuals to conceive children. It is a procedure whereby donated sperm and/or eggs are used to conceive a child. The result is that one or more of the child’s social parents will not be his or her genetic parent(s). Donor gamete conception has been most commonly used by heterosexual couples when natural conception is not possible as a result of male, female or joint infertility, but in recent years has been used also by single women and some lesbian couples.
3.2 There are special parental status rules for the reallocation of parenthood in donor gamete conception. This chapter reviews the practices of donor gamete conception in New Zealand, considers what legal parental status rules apply and what legal changes may be needed. A list of the common terms used in this chapter is included in the preliminary pages of this paper.
Clinic setting: practices
3.3 In the past three decades specialist fertility clinics have gradually taken over the treatment of infertility from obstetricians, gynaecologists and general practitioners. Since approximately 1977, donor sperm has been used as a treatment for male infertility at these clinics. Prior to this, private obstetricians/gynaecologists and some general practitioners arranged donor insemination on occasion.
3.4 Until around 1990, sperm was donated on the basis that the donor’s identity would be kept anonymous, although non-identifying information was usually available to recipients. Prior to 1987, anonymity was considered to be desirable because it ensured the donor could not later find himself burdened with legal parental responsibilities in relation to the child. Anonymity was also favoured because it was thought to maintain privacy and protect the child’s family from interference by the donor. Since 1992, egg donations have also been able to be carried out as a result of advances in reproductive technology. The Status of Children Amendment Act 1987 clarified the legal relationship that existed between donors and donor-conceived children and reflected these attitudes and beliefs.
3.5 Public consciousness of the harm that secrecy and deception does to families, and to children in particular, was raised following the closed adoption debates that led to the Adult Adoption Information Act 1985. Clinics began altering practices so that now comprehensive records of donors are kept, including information about the donors’ medical history and identifying characteristics, their interests and talents, educational achievements, work history, family history, why they want to be a donor, important influences and life experiences. In some cases, donors and the recipient families even meet prior to conception.
3.6 Though practices differ, for the past decade, clinics have not generally accepted prospective donors unless they are willing to provide non-identifying information about themselves to the child and his or her family. Clinics advised the Commission that it only became possible to depart from full anonymity practices when the Status of Children Amendment Act was passed in 1987, because this released donors from legal liability being owed to the child. Donors must now sign a form consenting to be willing to be approached by the clinic at some later date to consider disclosing more information and their identity to the child and the child’s parents. Basic information is disclosed to prospective recipients at the time they seek treatment. Other wording requires them to agree to consider being identifiable to the child at age 18.
3.7 Since 1993, when a complaint was received by the Human Rights Commission, all clinics have accepted women without partners and women in lesbian relationships for donor insemination. Between a third to just under a half of all donor insemination is carried out on single women and women in same-sex relationships. Use of donor sperm by heterosexual couples has declined in recent years as better techniques have been developed that enable the use of semen from men with exceptionally low sperm counts.
3.8 There are two types of gamete donor. Some are recruited by clinics from among the public via newspaper advertisements. We refer to these donors as “clinic recruited”. In the course of treatment some donors may become known to the recipients. Others remain unidentified.
3.9 Others are recruited personally and brought to the clinic by the recipients. We refer to these as “personally recruited” donors. They are almost always known to the recipients.
3.10 In the early days of donor insemination, donors were often medical students, hospital staff or the partners of hospital staff. Today, donors are fewer in number and the type of donor has changed. Whereas previously donors were typically young, single males, today, many are older with their own families. It has been estimated that each clinic receives no more than six new donors per year. The donors are not paid for the donation, although a contribution towards travel expenses is usually offered.
3.11 Clinics ascertain and abide by the wishes of the donor as to how his sperm is to be used. For example, he is typically asked if he consents to his sperm being used by heterosexual couples, single women, lesbian couples, overseas patients and in conjunction with in vitro fertilisation (IVF). He is also asked if there are any restrictions he wishes to place on the use of his sperm. This is considered consistent with the best interests of the child should the child want to meet the donor at a later date.
3.12 Clinics limit the sperm donated by one person to four to six families. Some will not offer “cross-cultural” sperm donation – it must be collected from a donor of the same or similar ethnicity as the recipient woman’s partner. The number of children being born each year from the use of donor sperm treatment from fertility clinics is estimated to be 100 to 150 per year. The number of children born from the use of donor eggs is estimated to be 20 to 30 per year. Both donors and recipients receive counselling prior to consenting to the procedures. In one Auckland fertility clinic, donor support and information meetings are held. Support groups are also held for parents whose child is conceived through the use of donor eggs or sperm.
3.13 As part of the compulsory counselling prior to gamete donation, the parties discuss their intentions and what type of contact they will maintain (if any) once the child is born. This is usually recorded in writing by the counsellor. Future contact often includes, as a minimum, an agreement about photographs being exchanged and the donor being available to give information on family history and so on. Some recipients might anticipate the donor playing a larger role in the child’s life, particularly if they are single women or a lesbian couple.
3.14 Donor gametes can also be used in IVF procedures where an embryo is created outside the body and then placed into the uterus. The embryo can be formed from donor sperm, donor eggs or both. Hence, a female partner in a heterosexual couple may give birth to a child to whom her only relationship is a gestational one. The male partner may have no genetic relationship to the child.
3.15 There is an increasing acceptance of known donors being recruited directly by the recipients from among family, friends and contacts. About half of all egg donors are estimated to have been personally recruited by the recipient couple. In one clinic, 10 per cent of sperm donors are known while 65 per cent of all egg donors meet with the recipients before the procedures are undertaken. Egg donors are particularly interested in knowing the recipients of their gametes.
3.16 Private, known donor inseminations also take place, particularly in the lesbian and gay communities. While egg donations cannot take place without medical assistance, sperm donations can. There is no reliable evidence as to the incidence of such arrangements. Agreements may be made as to the form of contact that the sperm donor will have with the child and family. These may or may not be recorded in writing and vary from arrangements for the male donor to have full, shared parental responsibility and rights with the mother and her partner, to being a known male figure in the child’s life without parental responsibilities and rights, to having no ongoing contact at all – although none of these agreements will have legal effect in the absence of a court order. It is not known what attempts are made to undertake health checks on the donors in these situations to protect the health of the intending mother and the child.
Gay and lesbian families
3.17 Though the incidence is not known, it is notable that the Census data for 2001 recorded a doubling of same-sex couples with children to 1356 in number from 684 in 1996. While some of these children will have been born when their parents were in heterosexual relationships prior to entering a gay or lesbian relationship, or may be whängai children or children of extended family members, many of them will have been conceived within the same-sex relationship.
3.18 There is very limited research on New Zealand lesbian and gay families. Of 10 mothers (all in lesbian couples) interviewed for her thesis Bree found that eight of the 10 had consciously chosen known male donors, despite having the option of assisted fertility with unidentified donors. Figures from Australia suggest lesser but still significant numbers using known donors. There is now considerable research demonstrating that children in lesbian families have similar outcomes as children raised in heterosexual families.
3.19 A characteristic of such families is their diverse nature. Pihama comments:
For lesbian and gay-led families in Aotearoa there is not one single definitive way of being; instead, families are diverse. Family types range from a redefined form of ‘nuclear’ family i.e. two mothers and children or two fathers and children living together through to more complex and extended arrangements.
3.20 The Family Court of Australia decision in Re Patrick referred to research demonstrating that although lesbian and gay families are increasing in number they cannot be characterised as an homogenous group and may take many forms. Such families may have two mothers; two mothers and one father; two mothers and two fathers; and, rarely, two fathers.
3.21 It is understood from anecdotal accounts that unidentifed donor conception takes place privately. In these situations, a third party acts as the agent and arranges for the woman wanting to be inseminated to obtain semen for the purpose of insemination.
3.22 The Status of Children Amendment Act 1987 contains a series of rules by which the parental status of children born through donor gamete conception is determined. These rules are based on the marital status of the women recipient of the sperm, egg or embryo.
A child conceived using donor semen
3.23 If the woman who bears the child is married or has a male de facto partner, and the husband or partner has consented to the donor insemination procedure, then her husband or partner is, for all purposes, the father of the child and the semen donor is not the father.
3.24 If the woman who bears the child is unmarried or unpartnered, or has undergone the donor insemination procedure without the consent of her husband or partner, then the donor is the child’s genetic father, but he does not have any rights or liabilities towards the child and the child has no rights or liabilities towards him.
3.25 The donor can only acquire rights and responsibilities towards the child if he later obtains an adoption, guardianship or custody order or if he marries or lives in a de facto relationship with the mother.
3.26 Hence, in the case of married women who use donor sperm, the donor is, via the deeming mechanism in the Status of Children Amendment Act 1987, made to disappear without a trace from the resulting child’s life. The deeming mechanism removes the donor’s status as the child’s genetic father as well as removing from him all the rights and responsibilities of a father. From birth, the child is deemed to be the child of the mother’s husband or partner in all respects. There is no first birth certificate issued as in adoption. It would appear to be unlawful for the genetic father’s name to be recorded on the birth certificate in a case of donor insemination where the recipient is a married or partnered woman and the husband has consented to the insemination. The child will not inherit from the donor father in cases of intestacy, nor have the right to file a claim against his estate under the Family Protection Act 1955. The donor father will not have to pay child support for the child.
3.27 Donors whose sperm is used by unmarried women have greater rights should they wish to make or retain contact with a child conceived with their gamete. The fact that the Status of Children Amendment Act 1987 covered unmarried woman was novel when it was enacted. It came into force well over a decade after similar legislation had been passed in many comparable overseas jurisdictions, and was novel in its application to unmarried woman.
3.28 In the case of an unmarried woman or a married or partnered woman who conceives with donor sperm without the consent of her husband or male partner, the donor remains, in law, the genetic father of the child but he has none of the rights and responsibilities of a father. The High Court, in the case of P v K, described the donor’s status as a “shell father”. However, there seems to be nothing preventing the donor from having his name recorded on the child’s birth certificate with the mother’s consent. Likewise, it does not appear to prevent the donor from having contact with his child. Nor would it seem to prevent a declaration of paternity being made in the donor’s favour or his being served with notice of an application by the mother’s same-sex partner for guardianship of the child.
3.29 Hence, recent decisions indicate a trend for courts to give fullest possible effect to the remaining rights of donor fathers in these situations. One reason may be the Court’s desire for the child to have a “father” in more than name. There may also be a concern for the child’s need and right to have knowledge of his or her genetic lineage and identity. It is unclear whether a donor’s genetic relationship to the child would be recognised in relation to the crime of incest or for the purpose of the law as to prohibited marriages.
A child conceived using a donor egg
3.30 The Status of Children Amendment Act 1987 deals also with egg donations. The woman who bears the child is for all purposes the mother of the child and the ovum or embryo donor is deemed not to be the mother. Like the sperm donor, the egg donor also has no parental responsibilities or rights and cannot be recorded on the child’s birth certificate as the mother. In law, the woman who gave birth to the child is the child’s mother. Her husband or partner is deemed to be the child’s father, provided he consented to the procedure, regardless of whether he produced the semen by which the child was conceived.
Conception through private self-insemination
3.31 It was decided in P v K that the deeming provisions apply where a child is conceived by self-insemination with donor sperm, even where it was intended that the donor would have some involvement with the child as a father.
3.32 In that case, the High Court heard an appeal from a claim under the Guardianship Act 1968 brought by a known sperm donor who had given his semen to a lesbian couple in a private arrangement on the understanding that he and his partner and family would play a part in the child’s life. The relationship broke down after the child’s birth and he was denied access. The High Court held that the Family Court had erred in finding that the donor had no standing to seek access to the child by means of a custody order although his parental rights and responsibilities had been extinguished under the Status of Children Amendment Act 1987.
Conception through sexual intercourse
3.33 A man may participate in sexual intercourse for the sole purpose of enabling a woman to achieve a pregnancy, with the joint intention of them both that he is to have no rights or responsibilities in relation to the child. It is generally agreed that the special rules established by the Status of Children Amendment Act 1987 do not apply in this situation because conception resulting from sexual intercourse falls outside the legal definitions of “artificial insemination” and “assisted reproductive procedure in that Act”. In law, the donor will be the father of the child although will not be a legal guardian unless the woman is his de facto partner or spouse. The donor will be liable for child support should the mother claim it.
3.34 Under the changes to the Status of Children Act 1969 foreshadowed by the Care of Children Bill 2003, privately arranged self-insemination will be covered under the Status of Children legislation. The Bill effectively re-enacts the provisions of the Status of Children Amendment Act 1987, but extends the Act’s provisions so as to give the same-sex partner of the birth mother of a child born through donor gamete conception the same parental status as is enjoyed by a de facto male partner in cases of donor gamete conception.
3.35 If enacted, the Care of Children Bill 2003 will have the effect that:
• The lesbian partner of a woman who bears a child using donated sperm, whether privately or with medical assistance, will, provided she has consented to the procedure, be for all purposes a parent of the child and must be treated as far as practicable in the same manner as the father or other parent of the child.
• The semen donor is for all purposes not a parent.
3.36 A known sperm donor who wishes to be an active parent to his child must negotiate a parenting agreement with the mother and her partner or spouse.
3.37 To illustrate the current and proposed legal parental status rules, we set out the following case examples.
In 1989, Lucia and Fernando wanted to have a family but Fernando had a low sperm count. The couple attended a fertility clinic and Fernando was first treated using ICSI (Intracytoplasmic Sperm Injection) but this failed. Lucia was then inseminated with semen from an unidentified donor. Lucia conceived a child and Margerita was born.
Lucia is Margerita’s genetic and birth mother and has automatic parental responsibilities and rights to care for her. Fernando is ‘deemed’ to be Lucia’s father because he is married to Lucia and knew of and consented to the procedure. Fernando’s name is recorded on her birth certificate as her father.
This remains the same under the Care of Children Bill 2003.
Lucia and Fernando decided to keep the circumstances of Margerita’s conception a secret. Fernando was embarrassed by his infertility and feared Margerita might treat him differently if she knew he was not her genetic father.
Consequently, Margerita grew up assuming Fernando was her genetic father, although she was aware they were very different. She neither looked nor acted like him. During puberty she suspected she was not his child when she found an old letter of her mothers in which she had talked about Fernando’s infertility. Her fears were allayed, however, when she secretly sent away for her birth certificate and saw Fernando registered as her father.
As a young adult, Margerita develops a serious bone condition and requires bone marrow from a family member. She then discovers that Fernando cannot be a donor because he has no genetic connection to her. She is deeply traumatised by this discovery on top of her battle with her health problems. She feels betrayed by her parents and her psychological state hinders her recovery.
Margarita has no legal right to obtain records of her genetic father’s identity because she was conceived prior to the Human Assisted Reproductive Technology Bill 2003 becoming law. (It is not yet law.) She may ask the clinic in which she was conceived to contact him to see if he would make contact with her. The clinic may be able to assist her with medical information about the donor’s family.
Anna and Bill want a child. Anna was born without ovaries but with a uterus. She cannot produce eggs but can bear a child. Her friend Claire has offered to donate an egg to be fertilised by Bill’s sperm but carried by Anna. Claire does not want to have a primary parenting role but wants to have some contact with the child. All agree that the child will know Claire is the genetic mother and have contact with her. The IVF procedure is successful and eventually Anna gives birth to Michael.
Michael has two parents with legal responsibilities and rights in relation to him. These are Anna and Bill. Anna is Michael’s gestational mother and is his legal mother by operation of the Status of Children Amendment Act 1987. She is recorded as his mother on his birth certificate, and has automatic parental responsibilities and rights. Bill is Michael’s genetic and legal father and is recorded as such on his birth certificate. He has guardianship rights and responsibilities in respect of Michael because he is married to Anna and knew of and consented to the use of Claire’s ovum to achieve conception. Claire, although she is Michael’s genetic mother, is not recorded on the birth certificate and is deemed by law not to be Michael’s legal mother. As a donor, she has no parental status at all.
This will not change under the Care of Children Bill 2003.
The friendship between Anna, Bill and Claire breaks down and the couple decide to move to Australia with Michael. Because Claire is neither a guardian nor a legal parent, she can do nothing to prevent this happening. Her only legal avenue would be to apply for leave for custody of Michael. She could not apply for access because that is only available to parents and she is not a ‘parent’ in law.
If Anna and Bill never tell Michael the truth about his conception he will be unlikely to know Anna is not his genetic mother unless, as was the case with Margerita, something unusual occurs to raise this as an issue.
Miriama and Eleanor are lesbian partners. They agree that Eleanor will bear a child with semen supplied by a friend, David. The three of them entered into a written agreement which provided that Miriama and Eleanor would be responsible for the day-to-day care and upbringing of the child, but that David’s name would be registered as the father in the birth particulars, and that he and his gay partner would have access one day a week. Conception took place privately by way of self-insemination and Moana was born.
Moana has only one parent with legal responsibilities and rights for her care. That is Eleanor. She is an automatic guardian because she is Moana’s birth mother. Miriama, though caring for Moana on a day-to-day basis as a primary parent, has no legal responsibilities or rights in relation to her. She can apply to be a guardian of Moana and, with Eleanor’s consent, will probably be granted it. She could apply for an order giving her joint custody of Moana. She could also, theoretically, apply to adopt Moana as a single adoptive parent, but the Court would be unlikely to make her Moana’s adoptive parent because it would extinguish Eleanor’s parenthood.
David, the genetic father, is deemed by law to be Moana’s father, but has no rights and responsibilities in respect of her by operation of the Status of Children Amendment Act 1987. He can, however, be registered on Moana’s birth certificate as her father if Eleanor consents. If Eleanor were not to consent, he would need to prove to the satisfaction of the Registrar-General that he is Moana’s father. Alternatively, he could apply to the Court for a declaration of paternity.
If Miriama and Eleanor’s relationship breaks down and Eleanor refuses Miriama access to Moana, Miriama would have to go to the Family Court and argue for guardianship and custody. If she is in conflict with Eleanor the Court may not give her guardianship. Miriama would be ineligible to apply for access because she is not a parent.
If Miriama and Eleanor’s relationship with David breaks down, he too would have to go to court to continue to see Moana. It is most unlikely that he would be granted guardianship because of the operation of the Status of Children Amendment Act 1987 that extinguishes his parenthood, but he may be granted custody if he could convince the Court that it would be in Moana’s best interests for her to have a relationship with her genetic father. He could only get such access by means of a condition attached to a custody order or by a wardship order.
Changes under the Care of Children Bill 2003
If the Care of Children Bill becomes law, Miriama, as Eleanor’s de facto partner, would be deemed a parent by law. She would also be a natural guardian because she was living in a de facto relationship with Eleanor between the time of conception and birth.
David would not be a father for any purpose, rather than at present, where he is a father without rights and liabilities. However, Miriama and Eleanor could consent to him being appointed guardian, which would give him these rights and responsibilities and they all could enter into a parenting agreement together.
Cory has two mothers and two fathers, Teresa and Maryanne who live together in one house, and Sean and Elliott who live together nearby. His four parents entered into an agreement before his conception that Sean and Maryanne would be Cory’s genetic parents, that Maryanne would conceive via self-insemination and that all four would be equally responsible for his upbringing and care. They agreed to a 50/50 shared care arrangement, which commenced when Cory was three months old and started staying over with his fathers. All four agreed that they would contribute equally to the costs of raising Cory.
Current legal position
Although both Sean and Maryanne are Cory’s genetic parents, only Maryanne has guardianship. Sean, as a donor, has no rights and liabilities towards Cory under the Status of Children Amendment Act 1987.
Teresa and Elliott have no parental status, but could apply to the Court for guardianship and shared custody along with Sean. It is doubtful whether this would be successful, however, as a result of the Court’s traditional reluctance to appoint multiple guardians. Sean, as a father who donated sperm to an unmarried woman, could apply for an order for custody from the Court if his relationship with Maryanne and Teresa breaks down. He could not apply for access as a “parent” because, as a donor, his parental status is removed.
Position under the Care of Children Bill 2003
Teresa, as Maryanne’s live-in partner, would be deemed a parent of Cory and would have status as his natural guardian. Sean, despite being Cory’s genetic father, would not be a parent in law. Neither Sean nor Elliott would have any rights and responsibilities for Cory’s care unless the Court appoints them guardians or they enter into a parenting agreement with Maryanne and Teresa.
CASE EXAMPLE FIVE
Jack and Marta desperately wanted a child but were both infertile. He had a nil sperm count, while she had her ovaries removed during treatment for ovarian cancer. Her uterus was intact, however, meaning she would be able to carry and give birth to a child if she got pregnant. The couple sought the assistance of a fertility clinic, which created an embryo for the couple in the laboratory using a donor egg and donor sperm. This embryo was transplanted successfully into Marta’s uterus, who became pregnant and eventually gave birth to Benson.
Jack and Marta had met the female donor, Simone, at the clinic prior to her eggs being harvested. They agreed with her during counselling to exchange photos and emails after the birth to let her know how the baby was getting on. The sperm donor was unidentified, but they did have access to limited non-identifying information about him and his family from the clinic.
Position under current law
Under the Status of Children Amendment Act 1987, Jack and Marta are deemed Benson’s genetic parents. They have parental rights and responsibilities to care for him. The donors are deemed not to be his parents and have no rights and responsibilities in respect of the child.
Jack and Marta can be entered on Benson’s birth certificate as his parents. Their names and details are entered onto his birth certificate as his mother and father.
Position under the Care of Children and Human Assisted Reproductive Technology Bills
There would be no change to Jack and Marta’s status as parents and guardians. The information collection and storage provisions of the Human Assisted Reproductive Technology Bill 2003 will mean that Benson will be able to access information about his donor parents from either the fertility clinic, if it is still operating, or the central register. However, he will be dependent on Jack and Marta telling him that they are not his genetic parents.
3.38 The difficulties in allocating parental status, which are raised by the use of assisted human reproduction arrangements, are well expressed in a report by the New York State Task Force on Life and the Law:
With assisted reproductive technologies, it is now possible for a child to be born with three biological parents – a man who provides the sperm, a woman who provides the egg, and another woman who carries and delivers the child – and one or more additional “social” parents, who intend to raise the child but who lack any biological ties. These situations challenge long-standing assumptions about the meaning of parenthood and the legal significance of biological and social relationships in defining family bonds. What are the relevance of genetic, gestational, and rearing contributions to parenthood, given that each of these contributions can be provided by different people? Should all children have one parent of each gender as a matter of law, regardless of the circumstances under which the child was born? What are the roles of intent and contract in determining parental rights and responsibilities?
3.39 New Zealand’s parenthood laws have been based on a model of two parents who are simultaneously the child’s genetic and social parents. The genetic and social mother is also the gestational mother. As with adoption law, adjustments have been made to the law to deal with donor gamete conceptions to accord with the two-parent mother/father model. The egg donor is replaced by the gestational mother and the sperm donor is replaced by the mother’s spouse or partner. Further adjustments are being made by the Care of Children Bill 2003 to ensure the social parent in a same-sex relationship is treated the same as the opposite-sex parent. This has some precedent overseas.
3.40 The Status of Children Amendment Act 1987 and the changes proposed by the Care of Children Bill 2003 both transfer the fact of genetic parenthood and all rights and responsibilities of the genetic father to the spouse or partner of the mother. With egg donation, full status and responsibilities are given to the gestational mother and her husband or partner. The changes in the Care of Children Bill will treat same- and opposite-sex partners as co-parents. They will remove legal parenthood from the donor, whether or not the mother is married or partnered. Where a child has more than two social parents, only the child’s mother and her partner or spouse will be recognised as having legal parental rights and responsibilities towards the child. An egg or sperm donor who wants to be involved in the child’s upbringing will have to register a parenting agreement with the Family Court.
3.41 Clearly, donor gamete conception practices require society to find legal mechanisms to transfer legal parental responsibilities and rights from genetic parents to social parents (the caregiving parents). It is evident from the hypothetical case studies that the current legal situation has the potential to leave many families, and children within them, without the support of clear legal structures. This lack of clarity poses risks to donor-conceived children and their families. Besides the need to determine legal parental relationships, there is also a need for the law to take cognisance of the needs of children to know their genetic identity. Children conceived via donor sperm and eggs within heterosexual relationships are left, under the current and proposed laws, entirely dependent upon their parents to tell them their true genetic lineage. The Human Assisted Reproductive Technology Bill will require clinics to maintain a register of information for donor-conceived children but will not alter this.
3.42 There are strengths in the deeming model. It provides clarity and stability to the social parents and the parent–child relationship in heterosexual two-parent families. These social parents have formed the intention to have a child and are taking on all the rights and responsibilities of parenthood. Families and children may suffer if gamete donors’ rights are not extinguished because the donor could disrupt otherwise stable families. This is particularly so when the family was created with the expectation that the donor would not retain parental rights.
3.43 The deeming mechanism also provides clarity and reassurance to gamete donors who want to donate their gametes on an altruistic basis but do not want to take on any future liabilities of parenthood in relation to the child. It is also straightforward and simple and does not require non-genetic parents to take any legal steps in court to establish parenthood. They have a right to be entered as a parent straight onto the child’s birth certificate from birth.
3.44 There are also weaknesses in the functioning of the deeming provisions and some of these weaknesses remain under the proposed changes to the Human Assisted Reproductive Technology and the Care of Children Bills.
Legal fictions and the right to know
3.45 The deeming provisions create a legal fiction by ignoring the fact the child has a different genetic lineage at the same time as removing all rights and responsibilities of parenthood from the gamete donors. Are legal fictions a good idea? Adoption laws and practices were based on a legal fiction that the past could be concealed to the point where there was no legal recognition of the birth parents’ existence. This was considered best for the birth mother and child. This assumption proved flawed. Some adoptees reported problems in establishing a sense of identity. Fundamental characteristics, such as similarity in common interests, thinking patterns, behaviour, personality traits and physical attributes, may be missing in an adoptive family.
3.46 As is discussed in chapter 5, donor-conceived children worldwide are now articulating a loss of identity as adoptive children have done. In response to these concerns the Human Assisted Reproductive Technology Bill will require that all donor details be kept by clinics and key details sent to the Registrar-General of Births, Deaths and Marriages on birth of the child. Fuller details are sent after
50 years or when the clinic closes. However, it does not solve the problem that the child will not know about his or her genetic origins unless the parents tell. Nor will the new framework record details of donors for children born of donor sperm in private arrangements.
3.47 In relation to adoption, the Law Commission proposed that the legal effect of adoption be reformulated to effect a transfer of permanent parental responsibility from the birth parents to the adoptive parents, rather than a blanket transfer of genetic and legal parenthood. It was seen as important that the law recognised that the child’s birth parents and their families still exist and may have some role in the child’s life. The Commission proposed that adopted children have two birth certificates – one showing only the names and details of the adoptive parents, the other showing the names and details of both the adoptive and the birth parents. The full certificate would be available as of right to the child, the birth parents and the adoptive parents, but would not be available for general public search.
3.48 The Law Commission also recommended that birth parents and adoptive parents be encouraged to draw up a parenting plan, setting out their agreements on contact, access to medical history, exchange of information, photos and so on. We discuss parenting agreements in chapter 6.
3.49 In view of all that is known of the need and right to know identity, to purport to cancel out the fact of genetic parenthood when children are conceived by donor gametes may be inappropriate. A better mechanism might be to record genetic and gestational lineage for all children as it truly is – while introducing a fast-track system to transfer parental rights and responsibilities to the people who will be raising the child.
3.50 The respective merits in having the child’s genetic parents and gestational mother (if different to genetic mother) all recorded on the birth register, as opposed to a special register, require assessment. Consideration also needs to be given to how the law can extend to private arrangements taking place outside clinics. However, if either of the above systems is adopted, the child still remains without a means of finding out whether they have been conceived by donor gamete or by a surrogacy arrangement.
3.51 Baroness Warnock, Chair of the Warnock Committee on Human Fertilisation and Embryology in the United Kingdom in 1984, which recommended a similar legal enactment to the deeming mechanism, was reported recently as saying: “I strongly believe that in any case of artificial insemination by donor the birth certificate of the child should bear the words ‘by donor’”. There may be merit in this compromise position. A child’s genetic lineage would not be recorded on the birth certificate, but there would be a notation to alert the child to the existence of other genetic parents.
Exclusive two-parent model
3.52 A further weakness of the deeming mechanism is that it does not accommodate situations where more than two persons are involved in the conception, birth and upbringing of a child. The law will continue to recognise only two of them as the parents. Only the mother and her spouse or partner will have status as parents.
3.53 A child may have more than two genetic parents (a genetic father and mother, and a gestational mother) and more than two social parents. This is particularly so in gay and lesbian families, and Mäori and other ethnic groups who live in extended families. While the two-parent legal structure fits well in a European-derived nuclear, heterosexual family tradition, is it the best way to deal with the complexities of all families in New Zealand? Heath J in P v K raised this issue in the following way:
In 1968 Parliament is likely to have regarded the conception and rearing of children by their biological parents as a core value of (pakeha) New Zealand society. Of course, for many Maori and, indeed, other ethnic groups, a greater emphasis is placed on the participation of the extended family in the rearing of children. In this context, the Maori concept of whangai, a customary practice of adoption, should be noted. In my view, the concept of whangai is of relevance when considering how the law should respond, at a policy level, to problems of the type disclosed by this case because it focuses on an extended nature of ‘family’ group; each member of that group can be responsible for differing types of interaction with the child.
3.54 The Care of Children Bill 2003 proposal is that other persons involved in the care of children will be recognised by way of parenting agreements. Does this mechanism accommodate all situations? While some lesbian/gay families will be comfortable with the non-genetic parent being deemed to be a parent, and the genetic donor’s parenthood being cancelled in all respects and replaced by the same sex-partner, others will not. Many such families deliberately choose a known donor so that a father can be involved in their children’s lives. The substitution mechanism proposed by the Bill may be seen to set a divisive and undesirable order of rights and responsibilities that may not reflect the agreements of all the potential parents. Why not grant more than two parents legal parental status from birth, if this is what they all agree on?
Should the deemed parent be vetted? Do donor gamete conceived children have adequate protection?
3.55 Another possible weakness in the mechanism is that it allows people without a genetic connection to the child to have the rights and responsibilities of parenthood from birth without any vetting. Before two strangers to the child can take on parental rights and responsibilities via adoption, they are required to be approved by a state agency as suitable parents. Most donor gamete conception procedures differ in that the child will usually have one caregiving parent who has a genetic link. The law has previously recognised one genetic connection as adequate in that step-parent adoptions have been allowed to proceed without a social work report, although the Court is moving away from approving adoptions in these circumstances because of the extinction of the child’s genetic parents.
3.56 When considering fast-track parental status orders in surrogacy arrangements, the Brazier Committee in the United Kingdom recommended DNA testing to ensure that one of the parties is the genetic parent of the child, prior to legal parental status being transferred to the non-genetic parent. If not, applications had to be by way of adoption. The issue to consider is whether the child is adequately protected without any social worker check, so long as one parent is a genetic parent.
3.57 See chapter 7 for options for conferring and recording parental status in donor gamete conception and surrogacy.