by Mark Stephenson

Issue:

25,2004

Page:

6-8

Abstract:

The current Law Commission review

Keywords:

Paternity, Law Commission

You probably remember a man who helped you tie your shoelaces, or played football with you, or told really stupid jokes at the dinner table. I expect you called him ‘Dad’. Some may have no memories of a ‘Dad’ but they still have a father somewhere, in their genes and in their consciousness.

What is it, in essence, that makes a man your father? What makes you a father in your turn?

Is it the genes you pass on to your children? Is it the act of transferring semen, however that might occur? Or is it the love and care expended over the lifetime of a child?

For many people it is all of these things. However, for an increasing number of people not all the above apply.

Picture this: your father makes love with your mother one Sunday afternoon and you are conceived. Twenty-four hours later he is killed in a car crash. You are born and your mother forms a relationship with a man who raises you with all the love and care he gives to his genetic children, your older brothers and sisters. You notice you are the only one in the family with blond hair and a big nose. You begin to wonder…

Do you have a right to know your roots? Surely, yes, in this instance.

The man who helped make you would have loved you. His whole family will also bear you love, simply because of who you are. They belong to you and you belong to them.

Legally, you have a right to information about your parents.

There are implications for health: geneticists say we are on the brink of a revolution in terms of diagnosis and treatment of medical conditions carried in our genes. 

You may wish to be assured your chosen partner for life is not a half-sister or a cousin.

Psychologically, it is important to know your own identity.

In this example the law ‘assumes’ the man who begat you is your father. The man who brought you up has no parental rights automatically but can gain ‘guardianship’ with the same rights and responsibilities. However these rights can be revoked by the courts, and only continue till the child is eighteen. They do not give the child inheritance rights. 

There is a legal ‘presumption of paternity’ that a man is the father of a child born to his wife during the marriage and up to 10 months after legal dissolution. Where the couple are not married there is no such presumption. Both parents must sign the registration form confirming he is the father. This law reflects the old model of a nuclear family, and was designed to protect children from the stigma of illegitimacy. What if neither of your parents are genetically related to you?

In adoption, the law removes legal parenthood from the birth mother, and father, and gives it to the couple who will raise the child - the ‘social parents’. With it go legal guardianship and all rights and responsibilities. As the child, you have a legal right to find out about your genetic parents. The Child, Youth and Family Dept. have a duty to help you when you turn twenty.

Surrogacy is different, and the law has yet to be formulated to deal with it. At the moment, the birth mother and her male partner are legally the parents. The couple who asked her to carry ‘their’ child, the ‘commissioning couple’, have no rights or responsibilities in law. Often in surrogacy arrangements, the social father is also the genetic father. In other words he has ‘donated’ sperm. He is a genetic and social father who has no parental rights.

You, the child, have no automatic right to find out about your genetic parents. Neither your social parents nor any agency has a legal duty to inform you or help you find them.

How about if you grew up with two mothers and your father was a turkey-baster? In this situation your father, as a sperm donor, has no rights or responsibilities as a parent. Neither does your ‘other’ mother.

Often in these arrangements, the father is a friend and may have ongoing contact with you, whether you know it or not.

A father does not have to be named on the birth certificate. Some people are quite open about the arrangement, but the law gives no rights to you, as the child, to find your genetic father. This is against the United Nations declaration that a child has the right to know his parents and his origins.

How much does a child have a right to know?  What responsibilities do ‘other’ mothers have, e.g. in terms of child support when the couple splits up? Shouldn’t the child’s rights be the same whoever has been parenting them?

Let’s say your mother ran away with the circus and you grew up with two fathers. Now your mother is absent and your genetic father may not be legally your father (e.g., if he wasn’t living with your mother). Your ‘other’ father has no rights as a parent, or automatic guardianship, in spite of having raised you as any father would. You have a right to find out about your mother, naturally, but there is no compulsion, in law, for your fathers to tell you.

The present law makes assumptions. It assumes a child will have two parents of opposite sexes. It can’t cope with situations where there are more than two people with parental influence or rights. It doesn’t cope with same sex couples (though this is set to change in the Care of Children Bill). It doesn’t uphold the rights of children to know their origins, even as adults.

This last point is important. There is a growing body of evidence that knowledge of one’s origins is important for a sense of identity and experiencing a fulfilled life. Many people who have been adopted make contact with the birth mother. Perhaps all adoptees think about their genetic parents and wonder who they were and what they were like.

People who grow up without fathers, for whatever reason, are curious and often try to contact them when they reach adulthood. Children of sperm donors have similar ideas. A study in the US found they had feelings of inadequacy, incomplete identity and lack of belonging. They also criticised the lack of open-ness of their social parents. Their trust was damaged. There is a move in some countries to make it possible, as a right, to trace your sperm donor father.

In Maori tradition, and in other Polynesian communities, the importance of your whakapapa, and where you come from in terms of place and family links, goes without saying. Other family members often adopt children, either temporarily or permanently. The idea of the natural parents possessing a child is repugnant. The child belongs to the community. Adoption outside the whanau or iwi is rare, as the child would be considered vulnerable.

The law is blind to these arrangements. They are not illegal; simply outside its scope. The principles of Maori customary law are: open-ness, placement in the family, and whakapapa. Usually an adopted child knows their ‘real’ parents, who have frequent contact and input into decisions about their welfare.

There are different ways of doing things but it seems we all need to know who we are. Our ancestors are part of that picture. Many of us have family stories we love to hear - a great grandfather who ran away to sea at fifteen and sailed round the world, a distant relative who fought at the battle of Trafalgar, a Dutch relative who survived the German occupation in the 1940’s. Some have tales of arrival in New Zealand by waka or by steamship. These stories make up the fabric of our identity.

How should our identity be recorded, as required by law? At present nearly seven per cent of birth certificates do not have the father’s name on them. At the same time, up to ten per cent of children live with men assumed to be their fathers but who are not genetically related to them. In the new Care of Children Bill, a ‘donor’ father will have no parental status, not even a genetic one, even if he has a parental role alongside two lesbian mothers (please note that custody is not disputed in this example, merely parenthood). The child will have no right to that father.

The birth certificate could be a less flimsy document. There could be a requirement to record a father on the certificate, or the method of conception, or a list of all those involved, whether genetic donation of sperm or ova, carrying the child for others, or those intending to raise the child. Another idea is a central registry of genetic background, a ‘private’ birth certificate, as well as a limited public one as now.

Should parents be forced, by law, to tell their children the true manner of their conception? Or is it a parent’s right to decide what’s best for their child? Who is a parent, anyway?

Where there is a discrepancy between genetic and social parents, e.g., in surrogacy arrangements, the law could make parental rights and responsibilities clear, as well as recording details of ancestry.

The Law Commission is concerned the present law is not adequate and has produced a discussion document, ‘New Issues in Legal Parenthood’, which can be seen at www.lawcom.govt.nz  (check out ‘new publications’). It covers a whole range of scenarios where parenthood is ambiguous, or the law doesn’t reflect the real situation. It discusses issues about birth certificates, as well as the law concerning paternity testing. They are keen to receive feedback and submissions from groups or individuals before making recommendations to parliament. They will even meet with interested groups to discuss their concerns.

No law would be perfect for every case. However, it could set a standard of open-ness, recognise children’s rights to identity, and reflect real social situations a lot better than at present.

Perhaps we have a right to our ‘Dad’. Whether he is still living with us, or we never knew him; whether he loved our mother, or was an anonymous donor of genes; he is still part of us.