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Dr Thérèse Callus School of Law, University of Reading
Parenthood is, and should be, a question of individual choice: at least insofar as the decision to bear a child is concerned. But choice must surely be constrained once the act of procreation (be it medically assisted or 'traditional') gives rise to the birth of a child. English family law and policy bears this out. We only have to look at the obligation for a woman to be registered as the mother on her child's birth certificate, or the imposition of financial responsibility on a non-resident parent. Yet recent judicial pronouncements and current legislative reform proposals appear to suggest that parental status itself may be dependent upon the mere intention of the would-be (wannabe?) parent. This is not wholly unprecedented. We have recognised the importance of intention in the process of adoption and more recently in the use of donated gametes in assisted conception techniques. However, giving effect to intention has been circumscribed within the heterosexual model, ideally of two parents, to reflect the biological reality that a child is created by the fusion of male and female gametes. But the de-sexualisation of procreation through the use of assisted conception has resulted in a diversity of family forms and, in particular, the possibility for same-sex couples to 'parent' children. This in turn has led to confusion between the parental role and parental status; a confusion which is present in the recent case-law (for example, concerning the status of same-sex couples and biological parents as in Re D (Contact and Parental Responsibility: Lesbian Mothers and Known Father)  EWHC 2 (Fam),  1 FCR 556); in family policy reform proposals (for example concerning mandatory joint registration for mother and father on a child's birth certificate, Joint birth registration: promoting parental responsibility, Cm 7160 (Department for Work and Pensions, 2007)); and in the current legislative proposals on the attribution of parental status following recourse to assisted conception techniques (Human Fertilisation and Embryology Bill (Department of Health, 2007)). This article concentrates on the latter to highlight the difficulties that arise from recognising legal parental status on the sole basis of the adults' intentions and mode of procreation. Although the Human Fertilisation and Embryology Act 1990 opened the door to acknowledging chosen parental status, the status flows from the consent to the treatment itself, and cannot be separated from it. As such, it is moulded upon the heterosexual, non-assisted procreative model. The current reform proposals go much further. Not only do they appear to have been inspired by a misplaced focus on a couple of high profile and one-off cases, but, more importantly, they reveal an erroneous application of the principle of equality. This brief commentary is limited to examining their potential impact and highlights issues that must be further explored.
For the full article, see February  Family Law journal.
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