Lee Galloway
Galloway Family Law
Phone (02) 4934 6935
lg@gallowayfamilylaw.com.au
www.gallowayfamilylaw.com.au
For all human beings, the question ‘who is my parent?’ is an important one, and seeking the answer is an eternal epic. This search can be dramatic and painful, as we see in many situations where children are raised without choice about knowing their biological inheritance. Adoptees, the ‘stolen generation’, and even children simply raised without contact with their natural parent, have all come out in recent years, as adults now, speaking about the deep loss of not knowing.
And yet our society, increasingly in recent years, has been creating new ways of parenting. The nuclear family – where a man and woman produce a child and raise that child together – has come under challenge. Men and women are asserting their right to create and raise children in alternative arrangements: by sperm donation, egg donation, surrogacy arrangements (with or without donation), and other variations on these themes. The Maitland Mercury article ‘Egg donor wanted’ (Emma Swain, 27/02/09) shows that real people, in our region, are conceiving children in this way, in unprecedented numbers.
It is easy to do in practice – if the money’s right, the fertility clinics can offer the technology, and our pluralist society offers greater tolerance of social diversity. But it is not easy, in law or social policy, to deal with the future for children when we separate out the biology and the practice of parenting. All parties to these arrangements – biological donors, recipient parents, and the children conceived – will find themselves enmeshed in legal and social dilemmas they have not yet considered, and for which there is no simple answer.
The traditional framework is well settled. When biology is linked to parenting – that is, where the child’s biological parents are indisputably the parents – then certain legal and social principles operate. The biological parents will have parenting status, involving certain rights and responsibilities for that child, and the child’s welfare and interests will be tied to those people. Under family law principles, the child will have a right to know and relate to those people, and to be supported by them. The interests of the child and the parents are mutually reinforced, in a legal and social framework.
But when the biological parents stand to one side – as mere donors, leaving non-biological ‘social parents’ to raise the child – a new set of rules is called for. The old rules will not work, or do not meet with expectations. The problem is: the new rules are still under construction.
In my long experience as a family lawyer and legal policy adviser, I have come across some cases that highlight the different perspectives (and sometimes anguish) of the child, the donor and the social parents.
One young woman lobbied hard to the federal Attorney-General for law reform on behalf of children born of sperm donation. She adored her parents, her biological mother and her (non biological) father, but felt a longing to know more about the man who donated sperm through a clinic over 20 years ago, from which she was conceived. The clinic kept the records about the donor’s identity, but felt legally contracted not to disclose that identity to her. In the legal vacuum that surrounds this issue, the details still sit in a filing cabinet somewhere. They could tell her, however, that the donor had contributed to well over 200 births in the Sydney district she lived in. Not knowing his identity, she could not tell if she was related to any man she might meet – if she was dating her half brother, or worse still, her own father. This was feasible. She knew he was a young medical student when he donated so many, many times, when she was conceived. She now opposes sperm donation in principle. As she says, ‘it separates people from their families’ (ABC Radio, Law Report, 28/09/04).
In another scenario, a woman (let’s call her the ‘social mother’) was raising a child, who had been carried by a surrogate mother, artificially conceived from the surrogate’s egg and the mother’s husband’s sperm. The social mother was distressed in her appeal to the Attorney General that under Victorian law her name does not appear on the child’s birth certificate. She is not a mother, in law. This case is not isolated – this is how the law of parentage status operates around Australia: the woman who gives birth to the child will be the legal mother. These laws are subject to a pending review by the Standing Committee of Attorneys –General, aimed at harmonization and better coherence of surrogacy laws.
In another well-known family law case, a woman in a same-sex relationship conceived a baby, artificially, with sperm donated by a gay male friend of the couple. The family law drama centred around the man’s claim to contact with the child. He had standing to apply to the court – anyone with an interest in the child’s welfare can apply to the family law courts for orders about a child. Whether the courts will make these orders depends on the circumstances, and the child’s best interests. After a long battle, the court did order that the child should see the father regularly. As a footnote, this case had a tragic outcome – the mother killed herself and the child, blindingly distraught at her loss of control over the family she thought she had created.
At the centre of this case was the problem of disjointed expectations about what the man would be to this child. For the women, he would be a donor of biological matter. For the man, it was something more, which changed over time as he developed an interest in the child. For the courts, considering the child’s interests alone, the man would be what the child needed: a father.
The inherent problem in this area is that the parties to these arrangements (the donors, the social parents, and the child) see their relationship differently at different times. The donors and the social parents usually don’t want to be in a relationship together from the outset, and usually want the law to set them at arms’ length from each other. This gives cohesion to the social parent family, and relieves the donor of parental obligations they didn’t expect to have. At this stage, the child has no say in it. However, at some stage, the donor might assert his or her biological parentage to seek a relationship with the child, to the shock and sometimes horror of the social parents. Similarly, the child will often want a relationship of sorts, or at least the right to know their biological parent.
We need to remember these painful lessons from the past, when framing the future for these children. New regulations expected in NSW later this year are heading in this direction, supporting a child’s right to access their genetic parentage information if they are born of sperm or egg donation. Critics of these reforms (SMH, 25/2/09, ‘Fertility law change puts spotlight on donors’) include sperm donors who say they are concerned for the privacy of their ‘own children’ (perhaps they mean the ones they choose to acknowledge) now finding they have half-siblings.
‘Oh, brave new world, that has such people in it‘ (W Shakespeare, The Tempest, Act V Sc 1).
