The Children and Family Relationships Bill is a highly complex piece of legislation. It covers everything from education programmes designed to encourage compliance with access for separated parents, to the banning of anonymous gamete donation.
It is probably wise that the revised general scheme of Bill, issued this week declines to deal with surrogacy, given that there is a current Supreme Court case involving that issue. More importantly, it is an ethical and social minefield. Remember recent cases such as that of baby Gammy in Thailand, left behind because he had Down Syndrome while his sister was taken home to be parented by a convicted sex offender and his wife?
There are some new anomalies, however. Unmarried fathers are still not automatically entitled to guardianship rights. They have to be cohabiting with the mother for at least 12 months, and the only change is that that period can now include three months after the child’s birth.
However, if a lesbian couple in a civil partnership use donor sperm, under head 10 of the Bill, the parents are the birth mother and the civil partner, and guardianship is automatic under head 41. So a biological father, whether he be a non-cohabiting partner, or a sperm donor, has fewer rights than a same-sex civil partner.
This appears to ignore a landmark 2009 case where a gay man who had donated sperm to a lesbian couple applied for access to his biological child.
In McD vs L, it was acknowledged that, as Justice Denham said: "There is benefit to a child, in general, to have the society of his father." Access was therefore granted in the best interests of the child.
Automatic right
Also, where will this automatic right of civil partners to be considered parents and guardians sit with automatic registration of fathers on birth certificates? Do children conceived through sperm donation have no biological fathers? Another part of the Bill specifically excludes more than two parents.
While there is no automatic entry of the identity of the sperm donor on the birth cert, there is a provision for an “annotated entry” in the case of embryos created through gamete donation who are implanted in this State.
After 18, the “annotated entry” will inform the person thus conceived that there is further information available about the identity of the donor.
Banning anonymous donation in the State, and providing a mechanism that will encourage parents to tell (because chances are high that the child will at some stage request a birth cert as an adult) is a good step. It is also good that there is provision for being informed of the number of siblings, and for being given contact information of siblings who are willing to be contacted.
However, because most sperm donations come from outside the State, people will have no idea how many siblings they have in other countries. One Danish sperm bank has a huge proportion of the market internationally.
Home impregnation
Many women impregnate themselves at home, with no intervention from doctors. As a result, voluntary donor sibling registers have sprung up, including the Donor Sibling Registry (DSR) in the US.
Although the DSR has no objection to gamete donation in principle, it has this to say: “Oftentimes, telling is not the end of the story. Many donor children are very interested in learning about the other ‘half of themselves’ and may have a strong desire to connect with their genetic relatives. To you, the donor might just be a ‘piece of genetic material’, but to your child, it is one half of their genetics and their ancestry.”
One family on DSR discovered that there were 26 half-siblings, and that was just those who registered. There could have been dozens more. The proposed legislation is silent on limiting donations to one family, even within the State.
Donor sperm and eggs are misnamed. Purchased or sold sperm and eggs would be far more accurate. In contrast to adoption, which is highly regulated, gamete donation is a market, ruled by the usual cynical rules of supply and demand.
Given that most sperm and egg sellers tend to be young, many of them have not thought through the consequences of having offspring scattered throughout the world. One such sperm seller was quoted in the Guardian as saying that his mother would be upset if she knew of grandchildren that she would never meet. Rarely do we think of the grandchild who will be upset never to meet her grandmother.
In relation to other matters covered by the legislation, the proposal to extend the right to adopt to cohabiting couples may eventually be found to be in conflict with the best interests of a child. Cohabiting couples have been found again and again to be less stable. One British study showed that 27 percent of cohabiting relationships break up by the time the child is five, whereas only 9 per cent of marriages do.
This Bill reminds me of the name of one of the websites set up by children conceived through purchased gametes – Tangled Webs. Adults continue to spin tangled webs when it comes to families, and children are often those who suffer.