NZLII [Home] [Databases] [WorldLII] [Search] [Feedback]

New Zealand Law Commission

You are here:  NZLII >> Databases >> New Zealand Law Commission >> >> PP54 >> 5. Children and identity

[Database Search] [Name Search] [Previous] [Next] [Download] [Help]


5. Children and identity

5.1 Most children know their genetic parents as the people who care for them on a daily basis. In the unusual situation that they have never met nor had contact with one or both of their genetic parents, it is still likely that they will know something about them.

5.2 There are, however, four groups of children who may encounter real difficulties in obtaining information about their genetic parents.[211] These groups are:

• children conceived using donated gametes (eggs, sperm or embryo);

• children born as a result of a surrogacy arrangement;

• children who have no record of their father on their birth certificate;

• adopted children (particularly those under the age of 20 years).[212]

5.3 This chapter considers the needs and rights of children to know their genetic origins. Our focus is on the first three groups of children. Adopted children were the subject of a Law Commission report Adoption and Its Alternatives published in 2000, and so their situation is not discussed here. We examine New Zealand’s historical approach to legal parenthood, the social and legal developments that have affected children’s abilities to access knowledge of their genetic parents, and the measures that might be taken to give fuller effect to the need for and evolving right of children to know their genetic identity.

Children born of donor gametes

5.4 Children conceived through the use of donor eggs, sperm or embryos and who are raised in a heterosexual two-parent family, will not know that their social parents are not their genetic parents unless they are told. Children who are raised by a single parent or by same-sex parents will be aware from an early age that another person or persons must have been involved in their conception because of the missing opposite-sex parent.

5.5 Children born as a result of donor gamete conception with clinic involvement have the advantage that information about any donor is likely to be held by the clinic.[213] Most New Zealand clinics began collecting non-identifying information about donors in the late 1980s.[214] If the clinic is still in existence and has collected this information, the child should be able to access it, provided it hasn’t been destroyed.[215]

5.6 Children conceived earlier than the late 1980s and those conceived privately through self-insemination with donor sperm will find it difficult to access information about their genetic parents. They will be reliant on their social parents to provide them with this information.

Children born into a surrogacy arrangement

5.7 Children born as a result of a surrogacy arrangement and handed over to commissioning parents immediately after birth may be unaware of the circumstances surrounding their conception and birth. They may not know that they were gestated by, or conceived with an egg of, a woman other than their social mother. They may be unaware that the man who they identify as their father is not their genetic father.[216] Children who learn later of the circumstances of their conception and birth may find it difficult to obtain the name and details of their gestational mother and their genetic parents. If a fertility clinic has been involved in facilitating conception, the child may be able to obtain this information from the clinic. In other situations there may be no public or private records from which the child might trace the surrogate mother or the genetic parents.

5.8 Because surrogacy arrangements involve negotiation and agreement between the commissioning parents and the surrogate mother, and because they rely on trust on both sides, there is likely to be a personal relationship between them that may continue after the child is born. In some situations it is a relative or friend of the commissioning parents who agrees to act as surrogate mother. For these reasons it may be easier for a child born into a surrogate arrangement to obtain information or have contact with his or her gestational mother.

Children with no registered father on their birth certificate

5.9 A small but growing number of children have no father recorded on their birth certificate. There has been a steady increase in the number of children born to unmarried parents and this trend is likely to continue.[217] Of the 58 262 children whose births were registered with Births, Deaths and Marriages in 2000, nearly 4000 (6.84 per cent) had no details of their father shown on their birth certificate as at 22 October 2003.[218] Other official figures show a similar pattern.[219]

5.10 The fact that their father’s name and details do not appear on their birth certificate does not necessarily mean that these children do not know about their father. They may have been given information about him by their mother or a relative. They may have met him. They may even have an ongoing relationship with him throughout their lives. However, a significant number will have no knowledge of their father and will have no means of obtaining this information from a public record. There are also suggestions that between 1000–5000 children per year may have a man other than their genetic father recorded on their birth certificate.[220]

Historical approaches to openness and the child’s right to know

5.11 Throughout the nineteenth century and first half of the twentieth century it was believed that ex-nuptial children should be sheltered from the realities of their conception and birth and should be brought up to believe that their social parents were their genetic parents.[221] The strong emphasis on marriage as the only proper basis for cohabitation and procreation, and the social and legal disadvantages suffered by children born outside marriage, led many to conceal from children the truth about their genetic origins. Adoption laws provided a means of creating fictional genetic parenthood in favour of the child’s social parents, while at the same time severing the child’s relationship with the birth parents.

5.12 Only in the 1970s did legal moves towards greater openness in parent–child relationships commence. The passing of the Status of Children Act 1969 saw illegitimacy removed as a legal status. Open adoption was practised from the 1980s. After the passage of the Adult Information Adoption Act 1985 adult adoptees could access information about their birth parents.

5.13 Three landmark events also gave impetus to a shift away from children being regarded as objects of concern, to being recognised as autonomous individuals with rights to be respected and treated fairly. The International Year of the Child (1979) engendered debate about the position of the child in New Zealand society. This was followed by the English House of Lords decision in Gillick[222] in 1985, and the adoption of the United Nations Convention on the Rights of the Child (UNCROC) by New Zealand in 1993. In ratifying UNCROC, the New Zealand Government made a commitment to the international community to implement the rights set out in the Convention. A number of Articles have a bearing on the relationship between parents and their children. These include:[223]

• children’s right from birth to know their parents and to be cared for by them (Article 7.1);

• the right to preserve their identity and family relations from unlawful interference (Article 8.1);

• the right to maintain personal relations or direct contact with their parents if separated from them (Article 9.3); and

• the right to seek and receive information of all kinds (Article 13(1)).

5.14 Though “parent” is not defined, it clearly relates to genetic parenthood in Articles 7.1 and 8.1. The Convention lays down general principles that are relevant to the child’s right to know his or her genetic origins. It applies to all persons under the age of 18 years regardless of nationality, ethnicity, age, sex or the marital status of their parents.[224]

5.15 The Geneva-based Committee on the Rights of the Child, which monitors implementation of the rights in UNCROC, recommended in September 2003 that New Zealand ensure that adopted children have the legal right to access information about their genetic parents.[225] While there is no reference in UNCROC to the rights of children born as a result of donor gamete conception or surrogacy, it is likely that the Committee would reach the same conclusion on the basis of the right in Articles 8.1 and 13.1 to seek and receive information of all kinds.

The Mäori perspective

5.16 Moves towards giving children access to information about their birth origins have been boosted by a growing awareness that a regime of secrecy conflicts with customary values and child-rearing practices of Mäori and Pacific peoples.

5.17 For decades it had been a source of concern that members of a child’s whänau, aiga or extended family had no standing in relation to the adoption of Mäori or Pacific Islands children under the general law.[226] Mäori customary law views the child as part of the broader family group and not exclusively the child of the parents. It is of great importance for Mäori children to know their whakapapa and turangawaewae (traditional home).

5.18 In 1994, the Ministerial Committee on Assisted Reproductive Technologies placed this right to know identity in the following context:

Although the right to know genetic origins is an aspect of the best interests of the offspring and flows also from the principles of te Tiriti and justice, we consider it of sufficient importance in Aotearoa/New Zealand that it must be listed as a separate principle. In some places overseas this principle is not accepted at all, but we believe that the position is different here. Knowledge of whakapapa allows Maori to access constitutional rights and cultural strengths. Pakeha also recognise that genetic origins are very important for some people as they discover their own identity.[227]

children born of donor gametes and surrogacy

Lessons from adoption

5.19 Adoption research shows that many adopted children have a psychological need to know the true identity of those who brought them into the world. It gives them the ability to place themselves in a social context, a sense of continuity with their past and a complete biography.[228] Concealment and secrecy can lead to a sense of bewilderment when adoptees learn later in life that the persons they have treated as their parents are not their genetic parents.[229] The fact that the adoptee’s birth origins are cloaked in secrecy may convey the impression that there is something shameful in their past. Later discovery by adoptees that their social parents have withheld this information from them may engender resentment.[230]

5.20 Over the last 20 years there has been a move away from “closed adoption”, which created a wall of secrecy separating the adoptive parents and the child from the birth parents. It was only when the Adult Adoption Information Act 1985 came into force in 1986 that adopted children (at the age of 20) were able to obtain information about their birth parents.[231] The Adoption Act 1955, while it facilitates closed adoptions, does not stand in the way of open adoption practices and the Department of Child, Youth and Family Services (CYFS) supports open adoption and facilitates meetings, the exchange of information and, sometimes, ongoing contact between the two families. The Department of Child, Youth and Family Services has a statutory obligation to provide adoptees who have reached the age of 20 years with identifying information about their birth parents.[232]

Parallels between adoption and children born of donor gametes and surrogacy

5.21 Although very little research has been done on the outcomes for children born as a result of donor gamete conception, there is now evidence that children conceived with donor sperm may suffer some of the same genealogical confusion experienced by adoptees.[233]

5.22 Useful information emerged from a conference held in Toronto, Canada in June 2002, which was attended by donor-conceived children[234] and professionals working in the area. The pain resulting from secrecy was a recurring theme among donor-conceived children and the professionals working with them. Common emotional responses included grief, anger, loss, shame, depression, a sense of not belonging, an inability to trust or bond with others, a sense of incomplete identity and feeling of abandonment and rejection. Many children sensed they were different from their social parents well before they were told. It was important to some children to know whether they had half-siblings – be they the donor’s own children or other children conceived with his sperm. A common concern raised was their inability to access information about the medical history of their genetic parents.[235]

5.23 Some donor-conceived children are told about the circumstances of their conception at a time of family crisis (commonly on the death or divorce of a family member). They report that discovery of their birth origins at this time is doubly traumatic. They have to cope with the fact that their parents have withheld vital information about their birth origins as well as deal with the crisis that precipitated disclosure of this information.[236]

5.24 Recently, there has been a turning of the tide in favour of donor-conceived children being told the truth of their origins. It has been said that “[t]o bring up a child under a false impression is a moral wrong to the child”[237] and that “[n]ot giving information manipulates and limits the choices open to the deceived person”.[238] Another commentator has argued that:“if [donor insemination] is seen as a loving act for the child’s benefit there is no reason to taint the procedure with a lie that could prove extremely destructive to the child”.[239]

5.25 These views have been echoed in the findings of a number of international bodies. The Royal Commission on Assisted Human Reproduction in Canada found that “maintaining secrecy about the means of conception can be contrary to the best interests of the child”.[240] In the United Kingdom, Baroness Warnock, who chaired the committee responsible for the groundbreaking 1984 Warnock Report on assisted human reproduction, has recently advocated strongly for openness, saying support for donor anonymity in the report was wrong.

5.26 In a recent English decision[241] the Court had to consider whether children conceived of donor sperm have a right to information about their donor fathers, and whether failure to provide this information breaches their right to respect for (their) private and family life under Article 8.1 of the European Convention for Human Rights, now incorporated in the Human Rights Act 1998 (UK). The Judge accepted the genuineness of the plaintiffs’ evidence regarding their disappointment and distress at not being able to obtain information about their donor father and viewed it as “entirely understandable that children conceived by AID [Artificial Insemination by Donor] should wish to know about their origins and in particular to learn what they can about their genetic father, or, in the case of egg donation, their genetic mother”. He added that he did not find this at all surprising, bearing in mind the lessons that have been learnt from adoption, adding that:

A human being is a human being whatever the circumstances of his conception and an AID child is entitled to establish a picture of his identity as much as anyone else. We live in a much more open society than even 20 years ago. Secrecy nowadays has to be justified where previously it did not.[242]

5.27 There is little research on children born of surrogacy arrangements. We do not know how many commissioning parents tell their children about the circumstances of their conception, or at what age the children are told. Surrogacy arrangements usually involve personal contact between the commissioning parents and the surrogate mother prior to conception. The lack of enforceability of surrogacy arrangements means that there needs to be a trusting relationship between those involved. The people involved in surrogacy arrangements with whom the Commission has spoken all wanted their arrangement to be open. The Commission understands that there has been continuing contact between the surrogate mothers, the commissioning parents and members of their respective families.

How many people tell their children

5.28 Overseas surveys have shown that many parents of donor-conceived children choose not to tell their children about the circumstances of their conception. In all reported surveys nearly half of all parents did not intend to tell their child and less than 40 per cent had formed a clear intention to tell.[243]

5.29 The clinic professionals who have spoken to the Commission have all stressed the importance of honesty and access to information for children born of donor gametes. They report that in their counselling of recipient couples they encourage them to tell their children at an early age. However, the limited data that exists in New Zealand indicates that a majority of parents are not telling their children of the circumstances of their conception and the identity of the gamete donor(s). A study conducted by the University of Auckland showed that only a quarter of parents had told their children.[244]

Challenges to the child’s right to know

5.30 There is not universal support for the notion that children have a right to know who their genetic parents are. Emily Jackson, senior lecturer in Law at the London School of Economics, makes the point that a significant proportion of the population, perhaps as many as 10 per cent, are in fact genetically unrelated to their presumed fathers. She comments that infidelity may be a statistically greater threat to accurate knowledge of our genetic origins than the relatively small number of children born using donated gametes or embryos. Mothers are under no obligation to name their children’s fathers when registering their births and that, in this respect, “mother’s interests in keeping the father’s identity secret are allowed to trump children’s interests in knowing the truth”.[245] She also stresses that it would be difficult to enforce any right to information about one’s genetic origins unless there is a requirement that this information be recorded on the child’s birth certificate or a duty were imposed on parents to tell their children.

5.31 The UK Government announced in January 2004 that from 1 April 2005 people who donate eggs, sperm or embryos will lose their right to anonymity. Gamete donors will be identifiable to the children conceived from their donation when the children reach 18 years, in the same way that adopted children can access information.[246] Most, but not all, clinics in the United Kingdom were opposed to the removal of anonymity, expressing concerns that they would find it harder to recruit donors at a time when there were not enough coming forward. Public Health Minister Melanie Johnson MP, in announcing the proposed changes, commented that it was unfair that donor-conceived children did not have access to the same information as adopted children. She added that the adults involved can decide what they do but the children cannot choose whether or not to be born.[247] The UK Government will assist in advertising campaigns encouraging people to donate gametes on an identifiable basis.

5.32 The New South Wales Health Minister also announced early this year that sperm and egg donors will lose their anonymity as part of a shake-up of the State’s legislation on assisted human reproduction. A draft Bill that is currently being circulated will establish a central register of sperm and egg donors and will allow donor-conceived children to trace their genetic parents when they reach the age of 18 years.[248]

Proposals in the Human Assisted Reproductive Technology Bill

5.33 The Human Assisted Reproductive Technology Bill (HART Bill), introduced as a private member’s Bill in 1996 and significantly amended by a Supplementary Order Paper in April 2003,[249] contains detailed provisions that will allow donor-conceived children access to information about their genetic parents at the age of 18 years.[250] These provisions will not be retrospective.[251]

5.34 The Supplementary Order Paper outlines six principles that will guide service providers. One of these principles is that “donor offspring should be made aware of their genetic origins and be able to access information about those origins”.[252] An obligation is placed on providers to collect certain standard information about all donors (including the donor’s name, date, place and country of birth and ethnicity).[253] Providers must keep track of births resulting from donor gametes and notify the Registrar-General of Births of the child’s name, date and place of birth and sex.[254]

5.35 If a donor-conceived child aged 18 or older asks a provider or the Registrar-General for information, it must be given to them and they will be told whether the donor has asked for information about them.[255] The guardian of a child under 18 years of age can make the request. Children aged 16 or 17 can seek an order from the Family Court that they are to be treated as if they are 18 years old. The order will entitle them to information and enable them to consent to the disclosure to the donor of information about them.[256]

5.36 Providers must retain information about donors for 50 years. After that period, or if they cease business, they must pass their records to the Registrar-General who will hold the information indefinitely.[257] These legal changes are to be welcomed and will give donor-conceived children the right to the name, address, date and place of birth and personal and medical information about their donor parent when they reach the age of 18 years.[258]

5.37 Donors can access information about their donor-conceived child held by clinics or the Registrar-General, where the child consents to the donor being given this information and has attained the age of 18 years (or the Court has ordered in the case of a 16 or 17 year old that the child be treated as being 18 years old).

Outstanding issues

5.38 Despite a steady move towards openness in proposed laws and policies, there remain obstacles in the way of donor-conceived children having access to information about their genetic origins. A critical issue is that they are entirely dependent upon others to tell them the circumstances of their conception or birth. Unless it is readily apparent that another person or persons were involved in their conception and birth (as in the case of same-sex parents) they may never know that one or both of their social caregivers is not their genetic parent.

5.39 Secondly, the HART Bill does not address the needs of children conceived privately through self-insemination with donor sperm or children of private surrogacy arrangements. There is no obligation for information about the donor to be recorded or retained in the case of private arrangements. Thirdly, they do not address the needs of children conceived prior to the Bill coming into effect.

5.40 Another barrier is that children have no right to the information until the age of 18 (unless they succeed in getting a court order that they are mature enough to receive the information at 16 or 17).[259] Donor-conceived children under the age of 18 will not have access to information about their birth origins unless their guardian makes a request on their behalf or they obtain an order that they be treated as if they are 18. In this respect, the HART Bill is inconsistent with Articles 7 and 13.1 of UNCROC and with the evolving international recognition on children’s right to know.[260]

5.41 Clause 57 of the HART Bill allows a provider to refuse to disclose information to a donor-conceived child where the provider is satisfied that disclosure is likely to endanger any person. There is no similar restriction in relation to adoption information. It is hard to envisage situations where the receipt of information about one’s donor parent would put the donor parent or any other person at risk. There are other legal protections available should such a situation ever arise.[261]

5.42 Another potential barrier relates to the integrity of information storage systems and the fact that information will have to be collected from two different sources. Clinics are relied on to obtain, store and release information to donor-conceived children. While clinics will be required to advise the Registrar-General of Births, Deaths and Marriages of the basic details of the birth of a child conceived of donated gametes,[262] they only have to forward more detailed information about gamete donors 50 years after the date of the child’s birth or if the clinic closes.[263] It might be argued that there are risks associated with leaving it to private sector agencies to store this information, particularly where there is no government regulation of such agencies. In such a fast-changing area there must be some uncertainty whether current clinics will be operating in 50 years’ time. There are no penalties set by the HART Bill where a clinic fails to collect, store and make available information.

OPTIONS: birth certificAtes AND REGISTERS

Ensuring a record is kept

5.43 A child conceived as a result of donor gametes or surrogacy may have several persons in their life, all of whom have been involved in their conception, birth and upbringing: a sperm donor, an ovum donor, a gestational mother and one or more social parents who have formed the intention to have the child. As indicated previously, the law in New Zealand (and historically in most overseas jurisdictions) has traditionally favoured an approach that eliminates some and replaces others so that only two persons are recorded on the child’s birth certificates as parents. The existence of the others is removed entirely from the legal record.

5.44 However, that approach is changing. In reality, a child’s genetic ties cannot be erased. Why then should the law purport to do so? The negative impact upon donor-conceived children who are now adults bears striking similarity to that identified by many children in closed stranger adoptions. A vital part of their sense of self is missing, even when they have had a happy and stable family life. The HART Bill in New Zealand will ensure there is a record of the names and some details of gamete donors where insemination has occurred at fertility clinics. However, children conceived outside clinics or in surrogacy arrangements will have no official record of their donor parent(s) or gestational mother.

5.45 The question becomes: what is the best way of ensuring that all children’s birth records can be retained and accessed? Should social parents have rights to decide if, when and how to disclose such information?

Option 1: registering the social parents on the birth certificate and keeping a separate register of the child’s genetic parents

5.46 This retains the status quo and how the situation would remain under the Care of Children and HART Bills. Currently, the spouse or partner of the birth mother is deemed in law to be a parent and is automatically recorded on the birth certificate, though not the genetic parent. The Care of Children Bill will extend this to include same-sex partners of the child’s birth mother.

Disadvantages of option one

5.47 Private donor inseminations are not covered. Children, including adult children, have no means of knowing their genetic identity unless their parent/s disclose this. The information may no longer be accessible when their parents die.

5.48 The disadvantages could be reduced by the following:

• Including details of private donor gamete conceptions and surrogacy arrangements on the central register.

• Placing a legal obligation on gamete donors, birth mothers, commissioning parents and social parents in private donor insemination and surrogacy situations to notify relevant genetic and gestational information to the Registrar-General so that genetic details from private arrangements can go on the register.

• A unit within the Registrar-General’s office could be established with responsibility for collecting these records and ensuring they are accurate and complete. There would be a legal obligation to provide information to donor-conceived children and others with a proper interest in the child’s lineage on request.

• Placing a duty on parents to tell their children.

Option 2: a dual birth certificate regime

5.49 Children born by way of donor gamete conception or surrogacy could have two birth certificates. There would be a private birth certificate and a publicly available certificate. The private certificate would show the child’s full genetic parental lineage, recording the names and details of the child’s parents, any donor parent and, for children born through surrogacy, the gestational mother. It would record the roles the individuals had played. For example, if gametes had been donated the record could indicate “sperm or egg donor”. If the mother was a full surrogate it would record “gestational mother”. Hence, children could have two mothers recorded on their private birth certificates. The full birth certificate would be accessible only to those named on it. No legal rights or responsibilities would flow from being named on this certificate.

5.50 The public birth certificate would record the names of the social parents, those who have the legal rights and responsibilities of parenthood. Where there were two opposite-sex parents it would be indistinguishable from any other birth certificate. Where there were two same-sex parents both would be recorded. Where there were more than two social parents to the child all names would be recorded.

Advantages over option one

5.51 No legal fiction is created because the birth certificate would record the true details of the child’s genetic parentage.

Disadvantages

5.52 The child will still have no means of knowing his or her social parents are not his/her genetic parents unless told.

ENSURING CHILDREN KNOW HOW to access the record

Legal duty

5.53 A legal duty might be placed on the child’s parents to tell their children of the circumstances of their conception and birth. A possibility might be to require parents to tell their children before the age of 12 years, as issues of identity become more important for children as they reach their teenage years. The evidence suggests, however, that the earlier children are told the easier it is for both parents and child. Research suggests most parents want to tell their children but lack the support to do so.[264] Young children born to surrogacy arrangements are able to incorporate a sense of themselves with two mothers. They know their surrogate mother as their “tummy mummy”.[265]

5.54 A penalty need not be prescribed for failure of parents to meet this responsibility, but a penalty could be imposed if a parent wilfully failed to provide the Registrar-General with information about persons involved in the child’s conception and birth after a formal request had been made by the Registrar-General.

Requiring clinics to provide education, counselling and encouragement to recipients to tell their children of their

genetic origins

5.55 Although there would have to be counselling and encouragement provided to parents were a duty to be imposed, an option would be not to place a duty on parents, but, rather, to remind them through education and counselling of the importance of giving children honest and accurate information about their birth origins, and providing them with guidance as to when and how to tell their children. This already happens as part of the counselling in New Zealand fertility clinics, but clinics indicate there are serious issues relating to funding. Parents have often seriously stretched their budgets paying for fertility treatment in the first place.

5.56 Clinics could be obligated to cover telling children as part of counselling. In the United Kingdom, a Code of Practice lists the types of counselling that must be offered to people receiving fertility treatment, although there is apparently a low take-up rate (18–20 per cent of people being treated). The Code itemises counselling as to the advantages and disadvantages of openness and how the means of conception might be explained to relatives and friends, but does not specifically refer to counselling on the need to tell children.[266] An alternative to counselling would be to invite parents to participate in discussions with others who have borne children as a result of gamete donation. This allows parents to learn from the shared experiences of others. It can be helpful for parents to observe other families where the children know of and can talk openly about their birth origins.

Annotation of public birth certificate[267]

5.57 This could be a requirement in all cases where the child is conceived by donor gametes or surrogacy. The Registrar-General would place an annotation next to the name of the social parent who is not a genetic parent or gestational mother on the publicly available birth certificate, such as “by donor” or “by surrogacy”. Alternatively, it could indicate the operation of the relevant law such as “by parental status order” or by reference to a statutory provision (for example, section 5 of the Status of Children Amendment Act 1987). The latter could be seen as protecting the privacy of the parent and child, at the same time as being a clear indication that the parent is not the genetic or gestational parent of the child. These notations could be added to the public birth certificate automatically or only where the parents have consented.

5.58 This would be similar to the option adoptive parents have in requesting that the words “by adoption” appear on their child’s birth certificate. It could be optional or compulsory. It would ensure that the child will know at some stage that he or she was conceived by donor gametes or born to a surrogate mother, which may prompt them to seek the original records. It would also provide parents with a strong incentive to tell their children in a natural way of their birth identity as they grow up.

5.59 Some parents may feel the annotation opens them up to invasion of their privacy in situations where they must produce their child’s birth certificate. For example, when they present the certificate to enrol their child at school, the principal and administration staff will all have access to this information – they will know the child is not genetically related to one or both of his or her social parents.

5.60 Some parents may feel that telling a child of its origins is a matter that should be left to their discretion and judgement. Some children also may feel the annotation invades their privacy and feel embarrassed by their difference from their peers – though children do not generally need to access birth certificates until their teenage years. Further, if the parents are open and relaxed about the child’s birth origins, the child is much more likely to feel comfortable and relaxed.

5.61 If a fiction is allowed to be maintained on a public birth certificate it could be said to be buying into the qualities of shame and secrecy. When true details are disclosed on a birth certificate, parents do not have the easy option of not telling their child the truth. Disclosure assists parents to tell the truth and so facilitates healthier family relationships. Another possibility might be that, if the parents have not agreed to a notation being placed on the birth certificate, it would be open to the child to have this added at some later time – but, again, the child would need to know his or her genetic origins to be able to request this.

5.62 Such notations would alert children to the circumstances of their conception and birth if they have not been told by their parents. They would then be able to obtain further information either by obtaining a copy of the full birth certificate or by requesting information from the register held by the Registrar-General.

5.63 Knowing that their children will discover the truth when they see a copy of their birth certificate should prove a catalyst for parents to tell them about their conception at a young age, before the birth certificate has to be produced publicly. The first option of placing a duty on parents to tell their children might be seen as unjustified interference with parental autonomy and punitive at a time when encouragement is required. The available statistical evidence indicates that a majority of children are not told about the circumstances of their conception by their parents.

5.64 Annotation of the birth certificate and/or placing a duty on parents to tell their children are likely to meet New Zealand’s obligations under the United Nations Convention on the Rights of the Child, whereas the option of giving parents full autonomy to decide if and when to tell their children probably would not as this does not ensure the child will know his or her genetic identity. Overseas research indicates that parents find it extremely difficult to tell their children of their true genetic identity.[268] This may be a greater difficulty overseas than in New Zealand, where the debates on openness leading to the Adult Adoption Information Act 1985 and values underlying Mäori customary practices in relation to whängai children appear to have influenced mainstream New Zealand values.[269] If parents do not tell their children, the children and their offspring will lack health and genetic information that may prove vital in later life. There is also the risk that children will find out from some other source and this may strain the parent–child relationship.

Age at which donor-conceived children should have access to information

5.65 Right to know provisions could be extended to provide every child with access to non-identifying information when the child has attained sufficient age and understanding to assess the implications of receiving the information (as opposed to the age limit of 18 years set by the HART Bill). The problem with a capacity-based test is that someone who has limited knowledge of the child would have to make a judgement about the child’s maturity and understanding. Alternatively, there could be no age limit set on when children can access the information on the basis that if they are old enough to ask, they are old enough to know the truth. The reasons for denying access to information to under-18 year olds have not been clearly articulated. They can be criticised as being a form of age discrimination. Proposed new laws in the United Kingdom and New South Wales will give donor-conceived children access only at the age of 18 years.[270]

Options for children born into surrogacy arrangements

5.66 Children born as a result of a surrogacy arrangement raise different issues than children born as a result of donor gamete conception. If their conception resulted from the use of donated gametes the earlier discussion is relevant. However, regardless of whether they are conceived with donated gametes, their gestational mother will not be the woman who assumes their day-to-day care. From consultations carried out by the Commission it is evident that commissioning parents use various methods of acquiring a legal status in relation to the child following surrogacy.

5.67 If the commissioning parents adopt the child, the child, on reaching adulthood, will have the same rights of access to information as any other adopted child.[271] Adult adoptees are entitled to information even if they are living overseas.[272]

5.68 If the commissioning parents obtain guardianship and/or custody orders in respect of the child, the child’s birth certificate should show the child’s legal parents. This will be the surrogate mother (whether or not her eggs were used) and her husband or partner, if she has one and he consented to the prodcedure.[273] Where the surrogate is single, or where her husband or partner has not consented to the procedure, the name of the genetic father will be shown. If the commissioning father’s sperm was used to achieve conception, his name may be shown on the child’s birth certificate.

5.69 If the commissioning parents take no steps to acquire legal parental status, the child’s birth certificate will record the same details as to parentage as above.

Questions

Registers

Q4 Should children conceived of donor gametes be able to obtain full donor background information from a database held by the Registrar-General of Births, Deaths and Marriages as well as from the clinic that provided the treatment?

Q5 Should the law be extended to allow donor-conceived children under the age of 18 to have access to information on the register about their genetic parents? If so, should there be a lower age or no age restriction?

Q6 If the Supplementary Order Paper to the Human Assisted Reproductive Technology Bill becomes law should steps be taken to assist children conceived prior to its enactment in having access to information about their genetic parents?

Q7 Should children conceived in surrogacy arrangements or private donor gamete conceptions also be able to obtain information from the Registrar-General’s database?

Q8 What cultural information should be recorded on the Registrar-General’s database? For example, should Mäori donors be required to provide information about their hapü and iwi (tribal affiliations), if they know them?

Birth certificates

Q9 Instead of the register, should children born as a result of donor gamete conception or surrogacy have, in addition to the publicly available birth certificate, a private certificate that records the name, town or city of residence and occupation of all persons involved in their conception and birth including both genetic parents, the gestational mother and social parents?

Q10 Should the official, publicly available birth certificate of a child born as a result of donor gamete conception or surrogacy be annotated to indicate that a person named on it is not the genetic or gestational parent? For example, “by donor”, “by surrogacy” or “by section 4 Status of Children Amendment Act 1987”?

a) If so, what should such annotation say?

b) Should such a notation be optional and made at the discretion of the social parents?

Duties of clinics and parents

Q11 Instead of annotations:

a) Should there be a legal obligation imposed on parents to inform their children of the true facts about their conception and birth?; or

b) Should disclosure of such information be left to the discretion of the parents?

Q12 Should clinics be required by law to provide counselling and education and encouragement to recipients to tell their children of their genetic origins? If so, should it be state funded?

registering fathers

5.70 There can be a number of reasons why a father’s name and details may not be registered on a child’s birth certificate. Unlike a married father, an unmarried father cannot usually be registered unless the child’s mother consents to his name being included in the birth particulars.[274] The unmarried father will need to sign either the birth notification form with the mother or provide her with a signed statement accepting paternity.[275] There may be a number of barriers to this occurring if:

• one or both parties do not want him to be identified for personal reasons;

• the man is not aware that he is the child’s father;

• the father is absent or unknown;[276]

• the mother registers the name of another man on the birth certificate;[277]

• the mother decides to place the child for adoption;[278] or

• the father’s name is not registered to avoid him being liable for child support under the Child Support Act 1991.[279]

5.71 Parties may also prefer not to name the father if, for example, the pregnancy was the result of rape or incest, or there are cultural reasons why naming the father may be embarrassing or distressing for the mother, the father or the child.

Options for achieving higher rates of identified fathers

Education

5.72 In light of the international instruments affirming the rights of children to know their genetic origins, the Government might embark on an education campaign that encourages registration. The relationship between registration and bestowing of legal rights and responsibilities would have to be made very clear. It would have to be stipulated, for example, that this would or would not lead to financial obligations or that this would or would not lead to automatic guardianship responsibilities and rights.

The Swedish approach

5.73 In Sweden, a government agency is responsible for ensuring that, wherever possible, the name of a child’s genetic father is recorded as a matter of public record. This is based on a belief that it is in the interests of every child, and the public generally, for them to have an identified natural father.[280]

5.74 There are several reasons why governments may wish to find out and record information about fathers of children. These include:

• Governments’ social responsibility in providing children with access to information about their genetic parents from a publicly held register.[281]

• Governments’ economic interest in ensuring that men who procreate children bear some of the cost of rearing them.

• The public interest in giving men the opportunity to make a positive contribution to the life of their child, whether by way of emotional or practical support for the mother, or by way of a shared care arrangement or contact with the child.[282]

• The material benefits for children in providing them with information from which they can claim rights of inheritance.

The US approach

5.75 Various strategies have been devised in some of the States in America to establish and record the paternity of children born to unmarried couples:[283]

• In hospitals, paternity establishment programmes have been initiated. The mother and father are interviewed by officials who emphasise the importance of the child having a named father. Fathers are encouraged to make an acknowledgement of paternity.

• Letters are sent to the man named by the mother as the father of her child requiring him to attend an interview or to complete a questionnaire.

• Letters are sent to mothers who have not named the father of their child asking them to attend an interview. If a mother who is receiving public assistance fails to attend the interview her payments will be reduced. For mothers not on public assistance, attendance at the interview is voluntary. In New Zealand, mothers automatically gain less financial assistance if the father is not named.

• Fathers who deny paternity are offered the opportunity to participate in DNA parentage testing, the costs of which are met by a public fund if the putative father agrees to admit paternity if the test results show a specified level of probability that he is the father.

• Data-matching systems, using school and criminal records, are used to locate named fathers.

• Legal provisions that a putative father who refuses to provide a genetic sample and fails to attend a court hearing is presumed to be the father of the child and can have a default judgement entered against him.

5.76 While some of these approaches to establishing fatherhood may seem heavy-handed they have led to significant increases in the percentage of named fathers.

Questions

Q13 Should efforts be made to increase the number of fathers named on birth certificates?

Q14 Should the government be required to make inquiries into the paternity of every child whose name is not shown on the child’s birth certificate, as is done in Sweden?

Q15 Is there merit in any of the approaches adopted in the United States in ensuring that a greater percentage of unmarried fathers are identified in law?

Q16 What other means could be adopted to increase the number of named fathers on birth certificates?

Q17 Are there situations where the father’s details should not appear on the birth certificate?

Posthumous fathers

5.77 There are three situations in which a mother may wish to register the name of a deceased father on her child’s birth certificate. These are where:

• the father has died during the period between the child’s conception and birth;

• the mother has been inseminated with the semen of her deceased husband or partner after his death; or

• the mother is inseminated with donor semen after the death of her husband or partner pursuant to a consent given by him for the procedure during his lifetime.

5.78 In the United Kingdom, there has been significant public debate over the need to provide mechanisms that enable registration of fathers’ names in these circumstances. The Human Fertilisation and Embryology (Deceased Fathers) Act 2003 (UK) was passed as a response to a High Court ruling in February 2003 that a restriction on a woman registering her husband or partner’s name on their child’s birth certificate after his death contravened Articles of the European Convention of Human Rights that establish rights to respect for privacy and family life and freedom from discrimination.

5.79 The Act amends the Human Fertilisation and Embryology Act and allows a man to be registered as the father of a child conceived after his death with his sperm. There is also provision for a man to be registered as a father of a child conceived after his death using an embryo created before his death using donor sperm.[284] The Human Fertilisation and Embryology (Deceased Fathers) Act enables a man to be registered as a child’s father, without conferring on the child any legal status or rights as a consequence of registration.

If a father dies between a child’s conception and birth

5.80 In New Zealand, there does not appear to be any barrier to a married woman registering her husband’s name on their child’s birth certificate if he dies during the period between the child’s conception and birth. By virtue of section 5 Status of Children Act 1969, he is presumed to be the father of any child born during the marriage or within 10 months of the marriage being dissolved by death. On this basis the deceased father’s name could be registered.

5.81 The position of an unmarried mother who wishes to register the name of her deceased de facto partner is more complex. Under the Births, Deaths, and Marriages Registration Act 1995 an unmarried mother would usually need to obtain the father’s consent before he can be registered as the father.[285] The only way in which she could register a father posthumously, if he died during the period between conception and birth, would be if:

• she obtained a declaration of paternity or a paternity order naming him as the father;[286] or

• she was able to satisfy the Registrar-General of Births, Deaths and Marriages that the man was the child’s father and that he was unavailable[287] to give consent.288

5.82 Although the evidence required to satisfy the Registrar-General would be a matter of discretion, one would anticipate that a statutory declaration by the child’s mother, confirming that she had been living with her de facto partner at the time of conception, would be sufficient unless there is some disagreement on the part of the deceased’s family.[289]

Children conceived after the death of their father

5.83 Where a child was conceived posthumously through the use of the husband or partner’s frozen sperm, the Registrar-General would need to be satisfied that the man was the child’s father. This would presumably be straight forward, because the fertility clinic would hold written records of the deceased man’s consent to use of his frozen sperm to achieve conception. It is now also possible to remove live sperm from a man shortly after his death to achieve conception, although it is doubtful that this would occur through fertility clinics in New Zealand.[290]

5.84 Where conception was achieved with the use of donor sperm and the deceased husband had, prior to his death, consented to the procedure, it is probable that he would be deemed to be the child’s father[291] and likely that the Registrar-General would register his name as such.

Questions

Q18 Should the name of a deceased father be included on the child’s birth certificate?

Q19 Should the father’s name appear on a birth certificate even if conception takes place years after his death using his frozen, stored sperm?

Q20 Should the father’s name only be included on the child’s birth certificate where he has given written consent during his lifetime for the posthumous use of his sperm to achieve conception?

Q21 Should an intending non-genetic father be able to be registered on the birth certificate of a child conceived through the use of donor sperm, if he knew of and consented to the procedure, but died before the conception and birth of the child?


NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/other/nzlc/report/PP54/PP54-5_.html