Who is a parent?

Many societies and legal systems have to grapple with the reality that families are increasingly complex entities. In March 2002 a Scottish sheriff sought to define the basic principles behind the notion of “family”.¹ She ruled that a lesbian couple cannot legally constitute a family unit for the purposes of an award of parental rights and responsibilities. The case concerned the best interests of an 18-month-old boy whose mother was in a lesbian relationship and whose biological father was a gay man. The mother argued that her female partner should be awarded full parental rights since the father was simply a sperm donor for the lesbian couple who were the intended parents. He contested this and brought the case to court in order to obtain access to the child. The sheriff emphasised that the boy's interests were paramount, ruling that he should see his father, who was named as a parent on the birth certificate and who, the court said, should also be liable for his financial support. Gay rights campaigners welcomed this support for the parental rights of homosexual fathers but expressed concern about the rights of the mother's lesbian partner, opening up the concept of recognising multiple parents: possibly three or four. At present in the UK, mothers have parental responsibility for their children. In addition, fathers who are married to the child's mother also have automatic parental responsibility. The government intends to change the law to give unmarried fathers, who are named on a child's birth certificate, automatic parental responsibility.

In Scotland, the parental rights of same sex couples may ultimately be decided by the Scottish parliament. This judgment contrasts with an earlier American court decision involving novel notions of parenthood. In January 2000, an English male couple were registered in the United States as the parents of twins who had no named mother. The men, registered as “parent one” and “parent two”, participated in a surrogacy arrangement with an American woman, using donor eggs and sperm from one of the men (but they refused to say which one). Although the legal parents in the USA, the men were not recognised as such in the UK. They had custody of the babies but the twins were not entitled to UK citizenship.

Parenthood and nationality

The ease and frequency of travel across borders for medical treatment suggest that it is inevitable that complex legal difficulties will occasionally arise. Reproductive technology seems particularly prone to such problems, including questions of nationality. In 2001—for example, an English woman entered into a surrogacy contract in California, which went awry. When the surrogate mother discovered she was expecting twins, the American intended parents allegedly asked her to have selective reduction as they only wanted one child. The pregnant woman refused and the twins were subsequently born in the UK in November 2001. The intended parents sought but were denied a declaration from the court that her retention of the twins was unlawful under the Hague Convention on Civil Aspects of International Child Abduction. This case centred on the clash between the two radically different and contradictory legal approaches to surrogacy in California and the UK. In California, surrogacy arrangements are legally enforceable and, before the birth, the intended parents had obtained a declaration from the Californian courts stating that they had parental responsibility for the children and that the surrogate mother did not. In the UK, however, surrogacy arrangements are not legally enforceable and the surrogate mother is the legal mother of the children even if she is not genetically related to them. The legal situation could be altered by the intended parents obtaining a parental order (but problems may then arise about the financial arrangements involved in the American arranged surrogacy, see below) or if the children are adopted. The outcome of this particular case turned on the fact that the twins had no place of habitual residence. This is because they had never been habitually resident in California and although born in the UK they had no biological connection to the surrogate mother. Therefore, the basic requirements of the Hague convention were not made out. This case did not, however, settle the question of what will happen to the children now and subsequent proceedings held that, in this case, the decision was a matter for the Californian courts. There are also broader legal questions that need to be resolved about how the courts will deal with cases like this, which cross different jurisdictions with conflicting legal rules.

Altruism, payment, and the child's interest

A further complexity facing the American intended parents mentioned above is that it is perfectly acceptable in the United States to pay a surrogate mother but in the UK, commercial surrogacy has been frowned upon although, currently, only payments to third parties are illegal.² The male couple mentioned above who became coparents of twins allegedly spent £200 000 on the American surrogacy arrangement. In the UK, a 1998 was recommended that women acting as surrogate mothers should only be able to recoup their expenses from the intended parents (see below). The intention is to avoid the impression that children can be bought and sold, while recognising that birth mothers should neither be out of pocket for an altruistic act nor inappropriately lured by the prospect of financial gain. Some people are particularly anxious about the differences in social and economic status between surrogates and commissioning parents, fearing this could lead to poorer women being financially coerced. In its 1996 report, the BMA noted that most UK surrogates were apparently motivated by a mixture of altruism and the possibility of financial assistance.³

As part of the regulation of surrogacy in the UK, the intended parents can apply for a parental order, giving them legal responsibility for the child but only provided certain criteria are met. These stipulate that no more than “reasonable expenses” can be paid to the birth mother unless prior court authority is obtained. The 1998 review of surrogacy payments and regulations mentioned above attempted to clearly separate the practice of surrogacy from the concept of financial gain. It recommended that limits should be placed on the number of times a woman could act as a surrogate and that it should be illegal for surrogacy arrangements to involve remuneration in excess of actual expenses incurred or earnings lost. This meant that no standard sum could be set although amounts between £7000 and £10 000 had previously been seen as uncontentious.³ In February 2002, however, the court⁴ was asked to consider an application for a parental order in a case where the surrogate mother had received £12 000. Although not significantly more than had been generally considered acceptable, this was held to be greater than the actual expenses incurred. (The surrogate was living on state income support.) Nevertheless, the court authorised the payment retrospectively and granted the parental order. Two arguments were considered important. Firstly, the child's interests were seen to be best served by her being treated in law as the daughter of the intended parents, with whom she had lived since birth. Secondly, the intended parents had acted in good faith when promising to pay the sum requested. Nevertheless, in a relationship based so much on trust, the need for greater transparency between people making surrogacy arrangements was emphasised. In 1998, the organisation that helped facilitate this particular arrangement surveyed its members on the issue of payment⁵ and has consistently argued that surrogates should be paid more than just their expenses if the practice of surrogacy is to have a real future.

Promise keeping and truth telling

Broad moral, social, and legal questions are raised by cases to do with promise keeping and truth telling. In surrogacy cases, legal mechanisms such as contracts (in the USA) or signed memoranda (in the UK) attempt to bind the parties to a prior agreement in very emotional circumstances. Issues of consent and promise keeping are highlighted when genetic material is specifically given to enable the intended parents to have a child of their own. In many cases, they ultimately find that they are not the legal parents of their biological child. The validity of the original consent of all the parties is put in question when the law intervenes to make the outcome quite different from that envisaged when consent was given. In all these cases, there are also likely to be complicated issues about candour and telling the truth to the children involved. What should they be told about their conception and the conflicts arising from their birth? Candour is highly prized as a moral concept and may also have medical value in the case of genetically transmitted conditions but the potential psychological consequences can be hard to assess. In one of the cases described above—for example, the question arises as to whether the children should know that their intended parents only wanted one of them and their birth mother is not a biological relative and did not originally intend to keep them.

We have previously highlighted the issue of gamete donor anonymity⁶ and the evidence that most parents never inform the children born of donated gametes about their origins. Sometimes, however, such information may become crucial. In early 2002, after three years' deliberation, a Dutch hospital wrote to the parents of 18 children conceived through artificial insemination to inform them of a risk that had been transmitted via the donor sperm.⁷ At the time of donation (1989–95), the sperm donor showed no sign of a hereditary disorder but symptoms of a progressive brain disorder emerged in 1997. The hospital spent three years consulting ethics experts as to whether the information should be disclosed. Some of the children are now approaching the age where they will need to make reproductive choices but have been unaware that they have a 50% chance of developing autosomal dominant cerebellar ataxia, inherited from affected donor sperm. The disorder can neither be identified presymptomatically in a carrier nor are there any preventive or therapeutic options. Debate turned on whether there would be any value in informing the affected children, some of whom are likely to be unaware that they were born from donor sperm. It is sometimes argued that if there is no useful medical intervention, there is no benefit to the individual in knowing their genetic destiny.⁸ But the Dutch hospital argued that openness would allow the affected children to make a more informed decision about reproduction.