Why There S More to Paternity Than Sex

Should paternity be linked to sexual intercourse?

Michael Eburn

Senior Lecturer

School of Law

University of New England

ARMIDALE NSW

AUSTRALIA.

Although issues of paternity are usually uncontroversial, the use of artificial insemination has required the law to develop rules to determine who is to be considered the father of a child. This paper will look at paternity and the important, but misplaced focus that the law places on sexual intercourse in deciding who should have paternal rights and responsibilities.[1]

It is argued that the law could reasonably chose between one of three reasonable options for defining who is the father of a child, they are the genetic father, the social father or accept that children have more than one father. Under current law a child can have only one father but determining who the ‘father’ is depends on none of these factors, instead the laws focus is on whether or not the child was conceived following an act of sexual intercourse or artificial insemination. It is argued that the current approach is misplaced and unreasonable. In developing this argument I will explore the logical implications of the various legal options that available.

Paternity and Family Law

The Family Law Act 1975 (Cth) does not comprehensively define who is a father or a parent of a child. In Tobin v Tobin[2]the court was asked to take an expansive view of who is a parent and include a person who had been the foster father of a child and who had, therefore, voluntarily undertaken the care of a child and traditional paternal responsibilities. With respect to the obligation to pay child support, the court said ‘in our view, the natural meaning of the word [parent] of a child is the biological mother or father of the child and not a person who stands in loco parentis.’[3]

Statutory provisions create exceptions to this rule and so give an extended definition of ‘parent’. Where a child has been adopted, ‘parent’ means an adoptive parent of that child.[4] Where a child has been conceived as a result of artificial conception procedures, then, subject to relevant state law (discussed below), the father is the man who was married to the woman at the time and who consented to the procedure.[5] In both of these cases, the biological father is not a ‘parent’ for the purposes of either the Child Support (Assessment) Act 1989 (Cth) or the Family Law Act 1975 (Cth).[6]

Paternity and State Legislation

State and Territory legislation not only defines who the father of child is, but also who is not.[7] Where a child is conceived as a result of an artificial conception procedure, the sperm donor is conclusively presumed not to be the father of the child. Where the woman is married or in a de facto relationship, (and in Western Australia and the Northern Territory, this includes a same sex de facto relationship,[8]) and her partner consents to the procedure, then her partner is presumed to be a parent of the child.

The assumptions behind paternity

There are a number of assumptions behind paternity law. First it is generally assumed that every child needs a father. Of course it goes without saying that, as presently advised, every child does require some male person to provide sperm in order for a pregnancy to occur, but this assumption is that every child needs a social father. The Prime Minister, John Howard has said:

The issue here is the right of children in our society to have the reasonable expectation, other things being equal, that they have the care and attention and love of both a mother and a father.[9]

There is also an assumptionthat the family is made up of two parents, the mother and fatherand that there is no room (except in Western Australia and the Northern Territory, where both parents may be women) for any other ‘parenting’ model. In most Australian jurisdictions, a child has two, heterosexual parentsand no more; and anything else is seen as a departure from both the norm and the best.

Artificial Insemination and the nuclear family

Where a child is conceived as a result of artificial conception, the majority of Australian legislative schemes assume that the child will be born into a heterosexual nuclear family of mother, father and the children. Even in Western Australia and the Northern Territory, there is no room for a ‘father’, other than the mother’s husband. There is no expectation that the biological father, the sperm donor, will want to, or should, play any part in the child’s life. Accordingly the sperm donor is expected to be an anonymous, philanthropic donor, who donates sperm for the purpose of assisting some unknown couple to achieve their dream of having children.

The presumptions in the legislative scheme governing children conceived via artificial fertilisation procedures, and in particular artificial insemination displace the ‘the natural meaning’[10] of the word father and replace the biological father with social father (if there is one). The aim is to ensure that the family of mother and father and child born as a result of artificial insemination is for all legal purposes equal to the family of mother, father and child conceived by an act of sexual intercourse. Further

It enables a woman to have a child using sperm obtained from a man who is not her husband, secure in the knowledge that that man will not be able to interfere in the life of her child. … [11]

This act of replacement may well be reasonable if we accept the view of the Prime Minister that the heterosexual nuclear family is the appropriate, and the best, place to raise children. It may also reasonable, even without the heterosexual prejudice, to recognise that a man who is actively involved in a child’s life is more appropriately described as a ‘father’ than a man who donates genetic material essential for the child’s conception, but who is otherwise not involved in the child’s life. That is, the social parent is more important than the biological parent.

The problem with all assumptions about what people want and how people will behave, is that not everyone behaves as it is assumed they will, and fixed assumptions do not give sufficient recognition to choices that people may want to make. Re Patrick[12] is a case in point. The social parents of Patrick were a lesbian couple, but the sperm donor was a known former friend of Patrick’s biological mother. The initial assumption, that a child will be born into a heterosexual nuclear family, was clearly not met. Further, whilst the parents of Patrick may have believed the assumption that sperm donors do not want to be involved in the life of the child, their sperm donor did not meet their expectations and looked for ongoing contact with Patrick. He ultimately sought, and was granted, orders in the Family Court to ensure continuing contact. Contrary to the mother’s expectations, the law did not guarantee that the sperm donor would not ‘be able to interfere in the life of her child.’[13]

The fact that the biological father in Re Patrick wanted to know the child he helped create does not appear to be unique. In his judgment Guest J referred to ‘ … a survey of 84 women attending the Sydney Lesbian Parenting Conference in 2000’. That survey found that in 12% of cases, the sperm donor had a ‘sharing of parental responsibilities’; 33% of parents reported some contact between the child and the donor; 22% had regular contact and 13% had extensive contact.[14]

In 2004 the Auckland Family Court gave a sperm donor shared guardianship of the child produced by artificial insemination.[15]

A review of Australian donors advertising on ‘Sperm Donors Worldwide’[16] reveals 14 donors who of whom 11 indicated they would want, at least, to be identified to the child as the sperm donor. Some wanted more, they said they would:

… not be a hands-on 'father' on a day-to-day basis, but would still care for and love him/her. I would like to visit him/her occasionally and for him/her to eventually know that I am the biological father.

… like some involvement.

… like to be a known donor which could mean anything from co-parenting to regular visitation, yearly meetings, or at least meeting the child at 16 years old, or earlier if he or she requests.[17]

What this shows is that although the majority of sperm donors may wish to remain anonymous, a significant number want to know the children that are producedand to be involved in their lives. The assumption that all donors wish to remain anonymous is not correct for a significant number of donors and the families who bear their children.

In Re Patrick Guest J was concerned with a family created by a homosexual couple. In that context he said that the Family Law Act 1975 (Cth) ‘… was drafted with a heterosexual model in mind and thus fails to recognise the complexity of family forms that might be created through artificial insemination.’[18] This failure ‘to recognise the complexity of family forms’ is equally true whether the family is homosexual, heterosexual or a single parent family. As family forms change with increasing numbers of single parent families and blended families it might be time to reassess all our presumptions about paternity and the ramifications of the current law.

The choice we should make

Clearly biological and social fathersare important and the law can, and sometimes does, chose between them when deciding where paternal rights and responsibilities lie. It is arguable there is no need to make a choice at all and we should accept that a child can have more than one father and that both the genetic and social fathers should be regarded as ‘fathers’ according to law. If, however, we accept for the sake of the argument, that at least under current law, a child can have only one father[19] (limiting our discussion to fathers) then the father should be either the social father or the biological father.

The choice we do make

The problem with the current law is that it recognises two essential aspects of fatherhood, the genetic and the social, but the distinction upon which paternity is based is neither of these, rather it is whether or not an act of sexual intercourse took place. As sexual intercourse is not, and should not, be the definitive test of fatherhood, the law’s criteria for distinguishing when the genetic and when the social father is to be considered the lawful father of the child, is misplaced.

An example

Let us take as an example, Neville. Let us assume that Neville is the ideal man with a PhD in astrophysics and several competitive aerobics titles to his name. Assume the following scenarios occur in Neville’s life:

Neville’s sister, Jane is a lesbian. To assist Jane and her partner, Mary, to have a family, Neville agrees to donate sperm to allow Mary to conceive a child. They want to use Neville so there is some genetic relationship between Jane and the resultant child. Neville engages in an act of sexual intercourse with Mary as a result of which Mary falls pregnant and gives birth to Annabelle (“A”). Neville takes on his agreed role of ‘uncle’ with enthusiasm.
Neville likes the feeling of helping a couple to conceive, so he makes a donation to the local sperm bank. With Neville’s good looks and intellect, he is a popular donor and very soon after his donation a child, Belinda (“B”), is born to a married couple.
Neville goes to a disco where he meets a young woman and they engage in an act of sexual intercourse. They use contraception which, unfortunately, fails and Neville’s casual sexual partner falls pregnant. Neville indicates that he has no interest in being a father and offers to pay for, and support her through, a termination of pregnancy; an offer which she declines. She eventually gives birth to Christopher (“C”).
Finally Jane and Mary decide to have another child. Neville again agrees to donate sperm and does so by ejaculating into a cup; the sperm is introduced to Mary’s body via a syringe. Maryagain falls pregnant and gives birth to David (“D”). Again Neville takes on the role of uncle to D.

Neville is the lawful father of two children, that is Mary’s first child, ‘A’ and the child born as a result of the act of casual sexual intercourse, ‘C’. He is not the lawful father of the other two children, ‘B’ and ‘D’. The question that we need to ask is ‘What makes the various cases similar or different and is that sufficient to justify the different legal position of Neville?’

Genetic

Clearly the genetic relationship between Neville and the four children is the same. He is the genetic or biological father of each child. Clearly it is not genetics that is decisive when determining who the ‘father’ is.

Social

The social relationships are clearly different. In the case of ‘D’ Neville has an ongoing relationship with the child, but it is as ‘uncle’. That relationship can give rise to standing in the Family Court. Although the court could not order him to pay child support,[20] he would, if he can establish that he is ‘concerned with the care, welfare or development of the child’[21] have standing to apply for a parenting order to ensure ongoing contact with D. Standing depends on the fact that there is a relationship[22] and the ultimate order would depend on the court’s assessment of what is in the child’s best interests[23] but the result is that there is at least the possibility of seeking the court’s assistance to continue the relationship that the parties agreed to and have established.

The situation is not the same for A. With respect to A, the intention is the same; that is A will be the child of Jane and Mary and Neville will be her ‘uncle’. Despite that clear intention Neville is the child’s father and, again despite a clear intention to the contrary, Neville has ‘parental responsibility’ for A[24] and the primary duty to maintain A.[25] Should Mary apply for child support, Neville would be liable to support A even though that liability was never intended. Neville would have standing to apply for a parenting order, and in considering the child’s best interests, the Family Court would have to have regard to the underlying principles that:

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and

(d) parents should agree about the future parenting of their children.[26]

These rights can be enforced by and against both Mary and Neville. Despite the fact that when the child was conceived, it was not intended that Neville would be a social parent he could apply to have A live with him or for contact; Mary could apply for an administrative assessment of child support[27] and Neville would be obliged to provide that support.

Neville’s responsibilities as a parent to A may be very important if Jane and Mary were unable to care for A, for example if they were killed. In this case A would be without her social parents, and Neville, because he is her father, would have an obligation to support and care for A. This is an obligation that does not apply to D even though the genetic and social relationships are the same.

With respect to child B, under State, Territory and Federal law, Neville is not the father of the child.[28] Regardless of what happens to that child, Neville has no standing to seek a parenting order, and no obligation to support the child.

With respect to child C, as with child A, Neville is the child’s father with all the rights and responsibilities imposed by law. There is however a difference here between A and C. In the case of the conception of A, Neville intended, in fact desired, that a child would be conceived and born. It was his objective, as it was with the conception of children B and D, to see that a child was born.

With respect to child C it was clearly not his intention, or the child’s mother, to have a child conceived and born. In this case they used contraception to try and avoid a pregnancy. Once the child was conceived, the choice of whether or not to terminate the pregnancy was hers and hers alone. He could neither force her to have a termination, nor could he force her not to.[29] Her choice, however, determined his rights, obligations and liability. Once the child was born he can be liable to maintain the child as well as having parenting rights and responsibilities. These rights and responsibilities can be enforced against the wishes of either party, so he could seek orders relating to residence and contact even though she might wish him to have no contact with the child or with her. He can be forced to make a financial contribution to the welfare of the child, even though he has no contact and did not want the pregnancy to proceed. His wishes, and hers, are irrelevant in determining legal rights and responsibilities vis-à-vis the child and each other.