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Introduction
7.1 In this chapter we consider the ways in which the roles of the various people involved in the conception, birth and upbringing of children born through donor gamete conception or surrogacy and into gay and lesbian families might be recognised, and how parental status and parental responsibilities might be reallocated and recorded.
7.2 New technologies, changing social patterns and surrogacy arrangements have resulted in new family situations that challenge traditional assumptions about parenthood and the parenting of children. It is these assumptions that form the underpinnings of the present law. They all challenge the legal model, based on its English origins, where a child has two legal parents: one genetic mother and one genetic father. Theoretically, a child may now have three mothers: a genetic mother, a gestational mother and a social mother. They may also have two social mothers should they be raised in a lesbian couple household. Likewise, with such developments, children may have two or more fathers: a genetic father and one or more social fathers.
7.3 New challenges require new legal responses. How can the law give the persons who are to assume the actual care and parenting of a child the status and powers needed to carry out their responsibilities and maximise the benefit to the child? How can the law ensure that the three or more adults who will play an ongoing role in the child’s life each have the appropriate legal status and support? How can the law ensure that children retain knowledge of their genetic lineage where they are being raised by social parents who are not their genetic or gestational parents?
7.4 New Zealand law has long made a distinction between genetic parenthood on the one hand and parental rights and responsibilities (guardianship) on the other. It already does, in specific situations, include non-genetic parents as parents. There are two fundamental questions. Should non-genetic parents be given status as “parents” at law, or some other status such as guardians? Second, if they are to be parents, should they have parental rights and responsibilities only, with the donor retaining status as a genetic parent, or should donor parenthood be extinguished altogether? Options one, two and three, set out below, give non-genetic social parents status as “parents”. Option 4 gives them status as guardians. Options one and three legally extinguish genetic parenthood. Options two and four transfer parental responsibilities and rights to the social parents, but do not extinguish the fact of genetic parenthood itself.
Principles
7.5 Before looking at the options, we suggest some basic principles as a guide to the best way to reallocate parenthood in these situations. These are:
• that the best interests and welfare of the child should be of paramount importance;
• that children born as a result of gamete donation or surrogacy need and have a right to know about the circumstances of their conception and birth;
• that persons raising children from birth as their “parents” should have the legal rights and responsibilities necessary to nurture and care for the child;
• that there should be respect for the diversity of family relationships and the contributions each person makes towards the conception, gestation and raising of a child;
• that a child can have a number of committed and cooperative adults involved in his or her upbringing, provided always that these people have clear lines of responsibility and mechanisms for dealing with conflict; and
• that children should be given the opportunity to express their views on matters that affect them, and have these views taken into account where the children are of sufficient knowledge and maturity to understand the situation.
7.6 Where the people involved in the conception, birth and upbringing of a child agree on the rights and responsibilities they will assume from birth, this agreement should be recognised in law and given legal effect except where it is contrary to the child’s best interests.
Option 1: Reallocating parenthood by a statutory deeming provision – retaining the status quo
7.7 Sixteen years ago the Status of Children Amendment Act 1987 established rules reallocating the parenthood of children conceived using donor gamete procedures. These rules are very similar to those adopted in earlier times in comparable overseas jurisdictions such as Canada, the United States, the United Kingdom and Australia. In summary, the rules provide:
• a child conceived by means of a donated ovum or embryo is the child of the birth mother;
• a child conceived using donated sperm is deemed to be the child of the mother’s husband or male partner (if she has one and if he knew of and consented to the procedure);
• a child conceived with donated sperm to an unpartnered woman, or to a woman whose husband or partner has not consented to the procedure, is a child of the donor father although the donor has none of the rights and liabilities of a father in law.[323]
7.8 The Care of Children Bill, currently before Parliament, would make two important changes to the rules:
• Where a woman has a same-sex partner who consents to the donor gamete procedure, her same-sex partner will be deemed a parent of the child.[324] Thus, the child will have two female parents.
• Where a woman does not have a husband or partner, or where her husband or partner has not consented to the procedure, the sperm donor will not be a father of the child.[325] The child will have no legally recognised father.
• An ovum or sperm donor can become a legal parent of the child conceived with his or her gametes if he or she later becomes a partner of the child’s gestational mother.
7.9 The effect of these changes would be that sperm and ovum donors will always lose their parental status by operation of law. The donor can only regain that status by later becoming the mother’s husband or partner.[326] The same-sex partner of a mother who has consented to the donor gamete conception procedure becomes a parent of the resulting child by operation of law.
Advantages of retaining the status quo
7.10 The deeming approach has been part of New Zealand law since 1987. It is a simple and straightforward way of reallocating parenthood, insofar as it provides immediate certainty and clarity as to the adults who have legal parental rights and responsibilities once the child is born. The non-genetic parent does not have to take any steps to gain parental status in law. The gamete donor does not have to do anything to remove himself or herself from the legal responsibilities that a “parent” owes a child. Non-genetic social parents are granted that status simply by living in a marital or de facto relationship with the child’s birth mother. Non-genetic, gestational mothers are given parental status by giving birth to the child.
7.11 Where a child is going to be raised in a two-parent family and it is agreed that the donor will have no ongoing role in the life of the child, the deeming mechanism provides a clear expression of the parties’ intentions and provides the social parents with the legal rights and legal responsibilities necessary to care for the child. Under the Care of Children Bill, the partner of a recipient woman, whether male or female, gains parental status. Hence, the provision provides the same secure framework for a lesbian led two-parent family as a heterosexual family. Non-genetic parents in two-parent families will have legal clarity and certainty and be empowered to act as parents from the beginning of the child’s life.
Disadvantages of retaining the status quo
7.12 The deeming mechanism is based on an adoption model that purports to transfer both genetic parenthood and the responsibilities and rights of parenthood from the child’s genetic parents to his or her social parents. The adoption model has been criticised on the grounds that creating artificial parenthood spawns a number of anomalies and distortions.
Extinction of natural parenthood and the creation of legal fictions
7.13 Extinguishing the natural parenthood of the birth parents ignores the genetic contribution they have made to the conception, gestation and birth of the child. It removes in law the genealogical and genetic links between the child and the birth parents. For Mäori, a process by which the lineage and ancestry of a child can be expunged, and the child’s kinship relationship with their whänau, hapü and iwi extinguished, is alien and unacceptable.[327]
7.14 Under the Care of Children Bill, where a child is born into a two-parent lesbian family or to a single woman, the full parenthood of the donor father is extinguished. Unlike children in two-parent opposite-sex families who are given a replacement legal father, children in these families have no legal father. Some argue that a child should always have a mother and a father recognised in law, even if the father plays no part in the child’s upbringing and is unknown to the child. However, is having a father without liability or rights any more advantageous? Such a father was described in P v K as being a “shell father”.
7.15 The advantage that the latter group of children has over children in two-parent opposite-sex families is that they inevitably know that they have a genetic father who is not their parent and, further to the HART Bill, will ultimately be able to seek out his identity and information about him.
7.16 The downside of the deeming mechanism in heterosexual parent families lies in the enduring legal fiction it creates. The fact of donor conception is obscured more easily than in same-sex families by the child’s opposite sex dual parentage. The law, which replaces all parenthood including genetic parenthood, maintains this deception indefinitely. Unless the parents tell, the child will never know.
Suitability of deemed parent
7.17 The deeming provisions in the Status of Children Amendment Act 1987 apply immediately on birth, reallocating parenthood to the non-genetic parents without considering whether the reallocation is in the child’s best interests. If the child were to be adopted, the non-genetic parents would have to be vetted by the Department of Child, Youth and Family Services (CYFS) for suitability as parents prior to the adoption order being approved. Is the deeming mechanism sufficient protection to the child? The assumption underlying the law seems to be that because one parent is the genetic parent of the child it is sufficient for that parent’s partner to be given all the rights and responsibilities of parenthood. Step-parents can adopt children and the current practice of CYFS is to waive the requirement for a social work report. However, the courts are looking less favourably on step-parent adoptions because this completely cuts out the child’s natural parents. An important distinction between adoption and donor gamete conceptions is that, in the latter, two parents have made a decision and commitment prior to the conception to conceive and raise this child together.
Intending donor parents lose parental status
7.18 Where a known donor has been assured of parental opportunities for involvement in the child’s life, parental status is nevertheless removed by law. The absolutist nature of the deeming provisions means that the donor loses all parental status, rights and responsibilities in respect of the child. If the donor’s relationship with the child’s social parents breaks down, the donor faces real difficulties in pursuing a relationship with the child.[328] This makes the child’s relationship with his or her genetic parent vulnerable and could deprive the child of a potentially beneficial relationship.
Elevation of non-genetic parent over other adults who care for children
7.19 The deeming mechanism advantages the birth mother’s spouse or partner over other persons possibly involved in a child’s care. Matua whängai, grandparents, step-parents and foster parents may all be the primary carers of children even though they are not genetic parents. They can only secure parental responsibilities and rights by means of adoption or guardianship orders. In each case, an order will only be granted after independent judicial scrutiny of their personal qualities and what benefits the child will accrue by granting the application. This was the issue raised in P v K: why should husbands and partners be given special privileges that are denied other actual carers?
Surrogacy and deeming parenthood
7.20 There are no deemed parenthood provisions in New Zealand law that apply specifically to children born of surrogacy. The deeming mechanism, as it applies under the Status of Children Amendment Act 1987 and as it will apply under the Care of Children Bill 2003, creates a mismatch between the child’s social and genetic parents in surrogacy and their respective parental rights and responsibilities. Under the deeming provisions, the commissioning mother is not the legal mother of the child, despite intending to care for the child and, in some cases, being the child’s genetic mother. The commissioning father, even if he is the child’s genetic parent, may be deemed not to be its legal father if the surrogate mother has a husband or partner who knew of and consented to the procedure.[329]
7.21 It would be possible to legislate that, subject to certain conditions, the commissioning parents are for all purposes the parents of the child and the gestational mother is not a parent.[330] This might seem a simple and tidy solution but it has serious drawbacks. The surrogate mother would forfeit all parental rights without going through a process of choosing to relinquish them after birth, as occurs in adoption. The surrogate mother would be treated as a stranger to the child, despite having gestated and given birth to him or her and, in many cases, being the child’s genetic mother.
7.22 A deeming mechanism avoids scrutiny of the commissioning couple as potential parents even in cases where neither one of them is a genetic parent.[331] Adoptive parents are independently investigated by CYFS and the proposed adoption is scrutinised by a judge who must be satisfied that the applicants are fit and proper people to care for the child and that adoption will promote the child’s welfare and interests. None of these safeguards would apply if commissioning parents in surrogacy arrangements were deemed to be the child’s parents.
Birth certificate records under the status quo
7.23 Under this option, the child’s birth certificate records the woman who gave birth to the child as his or her mother (whether or not she is the genetic mother) and her spouse or partner as the father (whether or not he is the genetic father). Nothing is recorded on the birth certificate to indicate the parents are anything other than the genetic parents of the child.
7.24 Many of the disadvantages in this option may be overcome if there was some indication on the birth certificate that one or both of the social parents were not genetically related to the child but obtained their parental status by law (that is, by parental status order or via the relevant section of the Status of Children Amendment Act 1987).
Option 2: Reallocating parenthood by parental status order
7.25 An alternative to the deemed parenthood model would be to introduce a mechanism by which the non-genetic parent[332] could apply to the Family Court to be granted a parental status order in respect of the child for whose care and upbringing they have agreed to take responsibility. It could be termed a parental status order and application could be made before birth.
Features of the parental status order model
7.26 An interested person would be able to acquire parenthood and guardianship rights and responsibilities for the child by obtaining a parental status order from the Family Court. The gamete donor or surrogate mother would still be recognised in law as the genetic and/or gestational parent for the purposes of birth registration, but would be declared not to be the child’s guardian. Accordingly, he or she would have no automatic entitlement to a role in the child’s care and upbringing, unless the parties intend that they should be a guardian in law.
Who could apply
7.27 An application to the Family Court for a parental status order could be made by:
• the husband or partner (including a same-sex partner) of the woman who is to give birth to a child conceived with donated sperm (see case studies chapter 3: Fernando, Miriama, Teresa, Jack);
• commissioning mothers and fathers in surrogacy arrangements who do not have legal parental status, whether or not they are genetically related to the child (see case studies chapter 4: P’s social mother; O’s social mother and Mrs A);[333]
• an egg donor who intends to be a parent (see case studies chapter 4: Claire, if this had been the intention);
• the partner of a sperm donor (see case study chapter 3: Elliott).
7.28 An application could be filed prior to the child’s birth but an order would not be made until after the child was born. If the applicant for a parental status order is the child’s genetic parent, and the consent of all those concerned is filed in court, the order could be made on the papers without the need for a court hearing. If the applicant is not a genetic parent, or if the consent of any interested party has not been given, a parental status order could be made by the Family Court only if it is satisfied that the order would promote the child’s welfare and best interests.
Effect of the parental status order
7.29 The effect of the order would be to give the applicant status as the child’s legal parent and the rights and responsibilities that a natural parent enjoys. It would not remove the genetic parental status of the sperm or ovum donor in cases of donor gamete conception, or the genetic and/or gestational status of the surrogate mother in surrogacy, but, where it was sought, would declare that they are not guardians of the child and do not have rights and responsibilities in relation to the child’s care and upbringing. If the two birth certificate proposal discussed below was adopted, the name of all parents would be recorded on the full birth certificate, but the publicly available birth certificate would show the names of those granted parental status by parental status order and those other legal parents (such as the birth mother).
7.30 Depending upon the form of family arrangement agreed between the parties, the order could simply add a person or persons with parental responsibilities to the existing two genetic parents where it was agreed that all three of them (or more) would accrue parental responsibilities and rights.
7.31 It may be that the effect of a parental status order would be the same as an adoption order if the Law Commission’s recommendations in relation to adoption law are accepted by government and incorporated into legislation. The process for obtaining one would, however, be different. The order would be available only to couples of whom at least one has a genetic relationship with the child. Couples without a genetic link with the child would need to pursue adoption to accrue parental status. This adoption process involves scrutiny of the applicants as to their suitability to be parents and a social work report for the Court.
Application to case studies
7.32 Using the case study examples set out in chapter 3, Jack could become Benson’s legal father via a parental status order. Marta would not need an order because she is already Benson’s mother in law and has rights and responsibilities for his care (despite not being his genetic mother). The order would extinguish the parental responsibilities and rights of the unidentified sperm donor and Simone (the egg donor) in accordance with their agreement prior to conception.
7.33 In the case of Margerita, Fernando could become her legal father via a parental status order. Lucia would not need an order because she would already be a legal mother with full parental responsibilities and rights by virtue of her status as a birth mother. The order would extinguish all responsibilities and rights of the sperm donor because it was agreed he would have no role in the child’s upbringing.
7.34 Miriama could become Moana’s parent via a parental status order, which would extinguish David’s parental responsibilities and rights, as was agreed prior to conception. He could secure his ongoing contact with the child via a parenting agreement as a “parent” from the Court under the Care of Children Bill.
7.35 Teresa and Elliott could become parents of Cory via a parental status order. This would not extinguish the responsibilities and rights of parenthood held by Cory’s genetic parents, Sean and Maryanne. All four persons would be parents with legal responsibilities and rights in relation to Cory’s upbringing.
Advantages and disadvantages of parental status orders
7.36 Parental status orders would provide the people who intend on assuming day-to-day care for the child with the responsibilities and rights necessary to act as effective parents. It would place primary responsibility for the care of the child on the people who formed the intention to procreate, without creating a legal fiction in the process. It would confer parental status on non-genetic parents without extinguishing the fact of the genetic or gestational parental relationship between the gamete donor or surrogate mother and the child. Where it was applied, it would permanently remove the parental rights and responsibilities of the gamete donors and surrogate mother, if this was the parties’ intention. The disadvantage of this option is that people have to take legal steps to become parents, rather than being automatically granted parental status as in deeming. Donors’ liabilities and rights are not automatically extinguished, where this is the parties’ wishes.
Multi-parent families
7.37 These families are mainly families led by lesbian and gay parents. Where the sperm donor wanted rights and responsibilities for the child (along with the mother’s same-sex partner) he could obtain either a parental status order or be registered on the child’s birth certificate as the genetic father with the mother’s consent. In this way, should the Care of Children Bill be passed, he would become an automatic guardian of the child. If the Bill is not passed, he could acquire parental rights and responsibilities by making a parental status order or guardianship application to the Court. The term “donor” could be redefined so as to be based upon the intention of the parties rather than the means of conception.
7.38 Where all three intend that he have continuing contact with the child but no legal parental responsibilities and rights, he could be recorded on a first birth certificate as a donor father, which would not give him legal rights and responsibilities as a parent. He would not apply for a parental status order but his right to ongoing contact with the child could be given effect to via a parenting agreement, which could be registered in the Court and would be enforceable under the Care of Children Bill.
7.39 Pre-conception parenting agreements and parental status orders would enable gay and lesbian families to consider the options for all parties in deciding to conceive a child. The child’s legal relationship with all adults taking responsibility would be certain. If relationships were to break down, the Family Court would ultimately determine care issues on the basis of the best interests of the child.
Parental status orders and surrogacy
7.40 The Care of Children Bill, if enacted, would mean that a commissioning father who is the genetic parent of the child would not have to obtain a court order to secure parental status if he is named on the birth certificate (because he will become a guardian automatically). However, a commissioning mother, even if she is the genetic parent, would have to obtain a parental status order, because motherhood is determined in law by who gives birth to the child. A male partner of a commissioning father would also have to obtain an order.[334] An order could be made prior to birth to take effect at a certain time after birth. This would give the birth mother the opportunity to change her mind about relinquishing the baby. If, for example, in 28 days she did not apply to set the orders aside, they would take effect. If an order was granted prior to birth, the commissioning parents could be allowed to care for the child from birth. Under current law, the commissioning parents are not permitted to have the child in their home with a view to adoption and CYFS has to report on their adoption application. If neither parent is genetically related to the child, a parental status order might not be available and the commissioning parents might have to apply to adopt (which has more safeguards for the child).
7.41 The parental status order could be applied for at any time from, say, six months gestation to 28 days after birth. If granted before birth, it would take effect from birth (except where there was a surrogacy arrangement where it would take effect 28 days after birth). A parental agreement could be attached to the application before the Court as evidence of the arrangements entered into by the parties. If relationships broke down, then, as with any other family breakdown, the Family Court would decide issues on the basis of the best interests of the child.
A model with some parallels
7.42 This model has parallels with parental orders that are available in the United Kingdom in surrogacy situations only.
Option 3: Reallocating parenthood by adoption
Features of current adoption model
7.43 Adoption has been part of New Zealand law since 1881. It has met a variety of social and economic needs during the 122 years that it has been part of the New Zealand social landscape. It is a process by which the genetic parents of a child can abdicate from their parental role and transfer parenthood and its attendant rights and responsibilities to a substitute parent or parents.[335] The child is deemed to be a child of the adoptive parents and the birth parents are deemed to cease to be parents of the child. Adoption provides permanency to parent–child relationships because it is almost impossible to revoke an adoption order.[336]
Current role of adoption in donor gamete conception and surrogacy
7.44 Prior to the Status of Children Amendment Act 1987, adoption was of limited assistance in giving legal parental status to the husband or partner of the mother whose child was born as a result of donor insemination. If he was married to the mother, the child could be registered in his name on the basis of the presumption of paternity. His fatherhood would be a matter of public record. He was unlikely to be challenged in regard to his fatherhood by the sperm donor. The de facto partner of the mother of the child could not rely on the presumption of paternity nor could he apply jointly with the mother to adopt the child because joint adoption applications can only be made by a husband and wife.
7.45 What may have occurred in the past is that, despite the fact that the de facto partner was not the child’s genetic father, the mother and her de facto male partner would register the man’s name as the child’s father. The passing of the Status of Children Amendment Act 1987 resulted in the mother’s de facto partner being deemed to be the father of a child conceived with donated sperm. There is no need to resort to adoption law to give him parental status.
7.46 The removal of the deeming mechanism under the Status of Children Amendment Act 1987 and replacement with adoption will not cure the problem of legal extinction of natural parentage. The legal fiction of genetic parenthood is inherent in both adoption and the Status of Children Amendment Act 1987.
7.47 Also, in adoption, the order is not made until after child is born. This makes sense where decisions about who will parent the child are made after conception and often after the birth itself. However, in donor gamete conceptions, decisions about who will be parenting the child from birth onwards have already been made prior to conception. Adoption in these circumstances denies the social parents the legal certainty about their status prior to and immediately after the child’s birth. There seem to be potential advantages to the child if his or her social parents have legal certainty prior to the child’s birth. This may give the family unit a greater sense of security at a critical time when bonding between all is taking place.
Surrogacy and adoption
7.48 For parents seeking parental responsibilities and rights in relation to a child born in a surrogacy arrangement, adoption is currently the only process to secure such rights. As the law stands now, this is problematic in that it is a criminal offence to take a child into a home immediately after birth for the purposes of adoption. The important bonding at this time between the child and his or her social parents is interfered with. Advertising for a child to adopt is also contrary to the Adoption Act 1955.[337] Under an adoption order the genetic parent as well as the non-genetic parent must apply to adopt the child. The natural parentage of the genetic parent, and also their guardianship rights if they have them, is extinguished by the adoption order and replaced with full parental rights via adoption. This is seen as unpalatable by some, such as Mr A, who queries why he should have to adopt his own child.
7.49 Clearly, there would have to be changes to adoption law if it were to become the approved means by which commissioning parents could acquire rights and responsibilities in respect of a child. One possibility would be to give commissioning parents, one of whom is a genetic parent, a fast track through the adoption process. Another would be to provide statutory authority whereby CYFS could make inquiries and report on the proposed adoption in advance of the child’s birth. So as not to discriminate between parents raising children in surrogacy arrangements, and parents raising children via donated gamete conception, the social work report could be dispensed with unless neither parent was a genetic parent.
7.50 If adoption were altered along the lines of the recommendations set out in the Law Commission report Adoption and Its Alternatives[338] some of these perceived disadvantages may be lessened.
7.51 The Commission proposed that the legal effect of adoption be reformulated so that, instead of substituting the adoptive parents for the birth parents, adoption would be a transparent process effecting a transfer of permanent parental responsibility from the birth parents to the adoptive parents. Instead of consigning the birth parents to legal oblivion, the law would recognise that the child’s birth parents, and their families, retain a kinship, genealogical and genetic relationship with the child and may have some role in the child’s life.
Option 4: Reallocating parental responsibilities and rights by guardianship order
Features of allocation of responsibilities by guardianship order
7.52 Guardianship is an established status under New Zealand law.[339] A guardian is not considered in law to be a “parent” of the child. A guardianship order can be discharged at any time if a court considers it no longer serves the child’s welfare. It has two distinct elements: the right to custody of the child and the right of control over the child’s upbringing.[340] A guardian’s right to custody can be taken away by an order giving sole custody to someone else but a guardian’s right to control over the child’s upbringing is unaffected by a custody order. It must be exercised jointly with any other guardian of the child.
7.53 If it were considered that the only persons who should be termed “parents” in law were genetic parents, then guardianship would be the legal means of empowering all social parents with the rights and responsibilities of parenthood. It would ensure the legal status of parenthood went only to genetic parents.
7.54 A child’s genetic parents are usually automatic guardians, with some exceptions. If the deeming mechanism under the Status of Children Amendment Act 1987 was repealed, a new mechanism deeming spouses and partners to be guardians could be put in its place. They would gain automatic guardianship without needing to apply for it.
Advantages of guardianship generally
7.55 Guardians have all the powers and responsibilities necessary to foster the child’s development, education and upbringing. They have the tools necessary to do the job of parenting. The term “guardian” is a reminder that children need committed adults to guard or protect them from harm. Unlike adoption, guardianship does not create a legal fiction as to the child’s genetic parentage nor does it sever the child’s relationship with birth parents, birth grandparents, siblings and so on.
7.56 Guardianship does not have the connotations of ownership of the child that adoption carries. It is not offensive to Mäori cultural values. Guardianship orders leave intact children’s genetic, genealogical and kinship links with their birth family.
7.57 If parenthood should be about genetic ties, creating legal “parenthood” in favour of a person who has no genetic link to the child could be said to confuse this distinction. A child will also know, if one of his or her carers is a guardian rather than a parent, that he or she has another genetic parent elsewhere.
Advantages of guardianship: donor gamete conception
7.58 The spouse or partner of the genetic parent has the same rights and responsibilities of parenthood without creating a legal fiction of being a genetic parent. If guardianship was deemed on the basis of relationship to the mother it would be a straightforward exercise and would provide certainty.
Disadvantages of guardianship: donor gamete conception
7.59 Guardianship places the genetic and non-genetic parent on an unequal footing in relation to their child. This could be seen as undesirable if they are creating a new family unit together with the intention of having equal parental status. It does not establish a permanent parent–child relationship and so does not recognise or create the framework for a life-long commitment to the child. Succession rights do not flow from guardianship as they do from parenthood and adoption. In these ways, guardianship can be said to lessen the security for the child and support for the new family unit.
Advantages of guardianship: surrogacy
7.60 Under current adoption law, a genetic commissioning father faces the unpalatable choice of losing his legal status as a parent if he and his spouse/partner pursue adoption, or retaining his legal status but preventing his spouse/partner from becoming a legal parent. Guardianship would allow the commissioning mother to have rights and responsibilities to raise the child without the genetic commissioning father losing his parental status in law.
Disadvantages of guardianship: surrogacy
7.61 There are disadvantages in using guardianship orders to reallocate parental responsibilities. The surrogate mother retains her parental status and she is automatically a guardian of the child. She is under no obligation to hand over the child or, if having done this, may reclaim the child. If guardianship orders are made in favour of the commissioning parents the surrogate mother will retain equal guardianship rights that can only be removed for unfitness or failure to exercise those rights. While changes of mind are rare they do precipitate a crisis for all parties and can destabilise the care arrangements for the child. This disadvantage could be rectified by making an application for removal of a guardian (the birth mother) at the same time as making an application for guardianship for the commissioning parents.
7.62 Another disadvantage is that, under current law, the child’s birth certificate will not show the non-genetic commissioning parents as the child’s parents if guardianship was granted.
Option 5: Reallocating parenthood/parental responsibilities by an agreement – enforceable parenting plans
What is an enforceable parenting plan?
7.63 Interested parties could make their own agreement about what parental status, responsibilities and rights each of them would have. The law could deem such agreements enforceable unless the Family Court concludes that the agreement is not in the child’s best interests. Agreements could be tendered as evidence of the parties’ intentions and wishes where applications for guardianship, parental status or adoption orders were sought.
Features of enforceable parenting plans
7.64 The parties (the surrogate mother, her partner, the commissioning parents in a surrogacy arrangement; and donors and recipient couples in donor gamete conceptions) would be encouraged, preferably prior to conception or birth, to agree on a parenting plan for the child that would set out who would have guardianship responsibilities for the child and who would have contact with the child. The plan could, with the consent of all parties, be registered in the Family Court and enforced in the same way as a court order, providing the Court was satisfied that the agreement would promote the child’s welfare and best interests. This option is discussed in greater detail in chapter 6 Agreements.
Advantages of enforceable parenting plans: donor gamete conception
7.65 This option assumes that the donor(s), the gestational mother and her partner know each other and can reach agreement. It has the advantage that involvement of the gamete donors, and members of their family, could be agreed prior to the conception of the child. The arrangements could be tailored to meet the wishes and circumstances of those concerned. This option would allow for greater flexibility and would meet some of the concerns raised by the High Court in
P v K.[341] A sperm or ovum donor who wanted no involvement in the child’s life could opt out of all parental responsibilities, while a donor who wanted ongoing information about the child or contact with the child could acquire enforceable rights and responsibilities by registering the agreement in the Family Court.
Advantages of enforceable plans: surrogacy
7.66 Private ordering has the advantage that arrangements could be tailored to meet the wishes and circumstances of those concerned. A surrogate mother who wanted no involvement in the child’s life could divest herself of all parental responsibilities, while one who wanted ongoing information about the child or contact with the child could negotiate an agreement that gave her enforceable rights.
Disadvantages of reallocating parenthood or parental responsibilities by agreement
7.67 No agreement can deal with all future contingencies. There are likely to be a number of changes affecting the lives of the parties and the child during the 18 years from birth to adulthood. Arrangements that may suit the parties and the child when he or she is a pre-schooler, may be inappropriate or unworkable when the child starts school or becomes a teenager. Separation, divorce, repartnering and the arrival of half-siblings or step-siblings will all have an effect on the child and the adults. The Court would always need to have the power to vary agreements by consent or after making a judgment about the welfare of the child.
7.68 Another downside of enforceable agreements is that where the various parties are not known to each other negotiations may be difficult and stressful. A sperm donor may have no desire to meet the mother and her partner. Having met them he may be unimpressed and refuse to proceed. While those involved in surrogacy arrangements are likely to have a trusting relationship, there is perhaps an increased danger that there will be an imbalance of power. The commissioning parents may be better educated and more persuasive or very anxious that the surrogate mother assist them in giving birth to a child.
7.69 Your comments and preferences are sought on each of the options discussed above as a means of reallocating parenthood or parental responsibilities for children born through donor gamete conception or surrogacy.
Option 1: Deeming provisions
Donor gamete conception
7.70 The law deems the spouse or partner of the mother (so long as that person consented) to be the child’s parent for all purposes, and deems the gamete donor not to be a parent.
Questions
Q22 Are the deeming provisions under the Status of Children Amendment Act, which confer parental rights and responsibilities on the non-genetic social parent, the best model for reallocating parenthood?
Q23 Should the genetic parent’s spouse or partner (the non-genetic parent) be deemed the full legal parent automatically upon birth of the child by operation of the law, or should that person have to take some legal steps to obtain parental status?
7.71 Currently, where the mother has a spouse or opposite sex-partner, the deeming provision transfers the genetic parentage of the child to the spouse or opposite-sex partner and extinguishes the genetic parentage of the donor parent. The Care of Children Bill will also extinguish the genetic parentage of the sperm donor where the mother is single or has a same-sex partner.
Question
Q24 Should the deeming mechanism operate so as to extinguish the genetic parenthood of the donor in law, as well as the rights and liabilities of parenthood? (In doing so, it will result in children born to single women having only one parent in law.)
7.72 Currently, the deeming laws come into play where conception is achieved via artificial insemination.
Question
Q25 Should the law that allocates parental responsibilities and rights in donor gamete conception be based upon the method of conception (for example, artificial insemination) or on the intention of the parties as to whether the donor’s legal parenthood is to be extinguished?
Deeming provisions: surrogacy
7.73 Currently, the surrogate mother and her husband or partner are generally deemed to be the parents of a child conceived by her through artificial insemination, even though neither intends to raise the child and the husband or partner will often have no genetic connection to the child. This protects the surrogate mother should she wish to change her mind and keep the child.
Question
Q26 Should the law be amended to deem the commissioning parents to be the child’s parents for all purposes and the gestational mother and her partner not to be the parents? If so, what protections should be put in place for the birth mother?
Option 2: Parental status orders
7.74 If the current deeming provisions were repealed, they could be replaced by parental status orders. The Family Court would be able to make orders in respect of any person who wishes to acquire parental status. That person would apply to the Court, with the genetic parent’s consent, and could do this from, say, three months before birth to one month after birth. The order might follow as of right upon the consent of the genetic parent. Alternatively, the order could have conditions attached regarding, for example, the duration of relationship to genetic parent or the suitability of the non-genetic parent.
7.75 Where the applicant was a genetic parent, such as an egg donor who is not a parent under current law (for example, IVF surrogacy), the order might be granted automatically upon proof of this status. Where the applicant was a non-genetic social parent, the law might require proof of a relationship with the genetic parent and possibly a time period before qualification, for example, that the relationship had lasted a specified time such as two or three years.
7.76 Alternatively, the Court could be required to be satisfied that the applicant is likely to advance the welfare of the child. The non-genetic parent might be screened by a social worker for suitability to parent.
7.77 The effect of the order would be to transfer to the non-genetic parent all the responsibilities and rights of parenthood but not the fact of genetic parenthood itself. The person would still be called a “parent” in law, unlike guardianship where they would remain a guardian. There would be no legal fiction that the spouse or partner contributed the gametes from which the child was conceived.
7.78 The order might also extinguish the parental responsibilities and rights of the genetic parent. An example of when the Court would extinguish these rights is where it had proof from a fertility clinic that the genetic parent was a clinic recruited donor who waived all responsibilities and rights upon donation. Where the gamete donor was personally recruited, the Court would require an affidavit specifically waiving such responsibilities and rights. In the absence of an affidavit from the clinic or personally recruited donor, the parental status order would be granted without extinction of rights of the genetic parent. This would make the parent liable for child support. The genetic parent/donor may, in fact, also make an application for a parental status order.
7.79 If the order was made prior to the birth it would take effect from birth. If after birth it would become effective immediately.
Questions
Q27 Is it better that non-genetic parents apply to the Court to obtain status as parents, rather than simply being “deemed” parents?
Q28 Should the parental status order be made automatically upon proof of a relationship to the genetic parent and the genetic parent’s consent, or should there be a duration of relationship requirement? If so, what should be the minimum duration?
Q29 Should there also be a condition that the non-genetic applicant be screened by a social worker and be approved by the Court as a suitable parent?
Q30 Should the parental status order be made only in respect of the spouse or partner of the genetic mother so that a child has a maximum of two social parents, or should other intending social parents be able to acquire this status?
Q31 If so, should it be granted automatically to the other genetic parent if they apply? For example, to a donor father who provides sperm for a lesbian couple?
Parental status orders: surrogacy
Q32 If a parental status order was made prior to birth, what should be the period of time after birth in which a birth mother has a right to apply to have the order stopped? For example, should there be an automatic right of revocation within 28 days after birth?
Q33 If the birth mother is only the gestational, and not the genetic, mother should she still have the right to refuse to give up the child to the genetic parents?
Q34 Where both commissioning parents are genetic parents of the child should they qualify for a parental status order automatically?
Q35 Should the Court grant a parental status order only if certain
conditions are met, such as the commissioning parents being of specified ages or marital status? What other conditions, if any, should be set?
Q36 Where one commissioning parent is a genetic parent should the other gain parental status as of right? If not, what requirements should there be? Should there be, for example, a duration of relationship requirement or a suitability assessment?
Q37 Where neither parent is a genetic parent, should the parents have access to a parental status order, or should they have to adopt the child and be subject to the standard adoption checks as to suitability as parents?
Option 3: Adoption orders
Donor gamete conception
7.80 The Adoption Act 1955 could be amended so that only the non-genetic parent would have to adopt the child to obtain parental status. Further, it could include persons in opposite- and same-sex de facto relationships. The Act could be amended so it did not purport to extinguish genetic parentage, though did extinguish parental responsibilities and rights of genetic parents. Also, the requirement for an assessment to consider whether the parent is suitable could be retained or removed.
Question
Q38 Is an amended form of adoption a better way to reallocate parental responsibilities? What changes to the Adoption Act 1955 would be necessary to reallocate parenthood in donor gamete conceptions?
Adoption orders: surrogacy
7.81 Under current law the only way in which commissioning parents can acquire legal parenthood of the child is by obtaining an adoption order. To obtain such an order the Court must determine whether they are suitable parents for the child and that making an adoption order will promote the child’s welfare and interests. It is unlawful for the commissioning parents to have the child in their home with the intention to adopt, or for them to advertise for a surrogacy arrangement.
Questions
Q39 Where both parents are the genetic parents of the child, should adoption be automatic and fast tracked? Where one is a genetic parent should adoption be automatic and fast tracked?
Q40 Should unmarried commissioning parents (including same-sex couples) be able to adopt the child?
Q41 What changes should there be to adoption law in surrogacy arrangements? For example, should there be any change to the law allowing the child to be cared for by the commissioning parents prior to the adoption and should commissioning parents be able to advertise for a surrogate mother?
Q42 What should be the time period before which the birth mother can give her consent to the adoption?
Option 4: Guardianship orders – donor gamete conception and surrogacy
7.82 Guardianship orders confer legal responsibilities and rights upon a person (the guardian) for the care and upbringing of a child, but the person is a guardian rather than a parent. They do not extinguish natural parentage or the legal parental rights and responsibilities of other persons. Guardianship can be revoked under the Guardianship Act 1968. The Act could be amended to provide for “enduring guardianship”, to be defined as a legal relationship that continued for life and allowed for the possibility of the child inheriting from the guardian as recommended by the Law Commission.[342]
Questions
Q43 What are the advantages of the model of “enduring guardianship”? Is the role of the non-genetic parent recognised adequately by a guardianship order?
Q44 Are commissioning parents of a child born into a surrogacy arrangement recognised adequately through the granting of a guardianship order?
Option 5: Reallocation of parenthood by an agreement – donor gamete conception and surrogacy
7.83 Agreements could be registered in Court to give them extra weight. There might be pre-conditions, such as the parties having to have counselling and independent legal advice. They would still be required to be subject to the best interests of the child. This could be assessed by the Court prior to registration or when a party was relying on an agreement to seek a court order, such as guardianship access and so on.
Questions
Q45 Should agreements as to the allocation of parental rights and responsibilities among involved adults be able to be registered in the Family Court with a presumption that they be enforced according to their terms? Should the presumption be rebutted if it was shown that the terms would not accord with the child’s best interests? Would there be any other basis for a rebuttal to be established?
Q46 Alternatively, should the Court be required to determine, as it is now, whether the proposals contained in the parental rights and responsibilities agreement are in the child’s best interests before they are enforced?
Q47 If parental agreements are to be registered, should it be a requirement of registration that the parties have had independent legal advice and separate and joint counselling?
Q48 Could or should these parental agreements be tendered as evidence when parties apply for a guardianship, adoption or parental status order?
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