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Genetic ties, social ties and parental responsibility

14 September 2015
By Dr Reuven Brandt
Research Associate, Department of Politics, Philosophy and Religion, Lancaster University
Appeared in BioNews 819

A UK appeals court recently granted an egg donor, A, a new hearing in her petition for a shared residency order for the twins conceived using her ova (see BioNews 748). A was seeking the shared residency order as a means of acquiring parental responsibility for the twins.

At the time of donating her ova, A was in a relationship with R, the twin's legal and gestational mother. A and R's relationship fell apart, and R formed a new relationship with C. Although the twins resided with R, A maintained an active role in their lives. However, following a series of disputes about contact and residence, A sought a shared residency order. At trial the judge ruled against A, stating that it would be inappropriate to elevate A's status in that manner.

However, on appeal, the court ruled that the trial judge had erred, in part by failing to properly weigh the importance of biological ties when determining whether such an order would be appropriate. In the appeal court's decision, Lady Justice Black stated: 'I think there needed to be consideration given also to the appellant's importance as the children's genetic parent.' This is not to suggest that genetic ties will automatically entitle a claimant to parent responsibility. Later in the ruling, Justice Lady Black agreed that 'the mere fact that the appellant is a genetic parent and/or that she played a parental role would not dictate the making of a shared residence order'.

That the appeals court found relatedness to be a relevant factor at all highlights some interesting tensions between how different parts of the law view parenthood and parental responsibility. Although the HFE Act clearly distinguishes biological parenthood from legal parenthood, under The Children Act decisions about parental responsibility are to be made on the basis of the welfare interest of the child. As this case demonstrates, if the law includes biological ties as relevant to a child's welfare, then parents who use donor gametes are at increased risk of having gamete donors interfere in their family life even if reproductive procedures are performed under the auspices of a licensed clinic. This makes the preceding case different from other recent cases where gamete providers have been found legally responsible for their genetic children (see BioNews 680 and BioNews 437).

Of course, as Lady Justice Black made clear, genetic ties alone are insufficient justification for a parental responsibility order (or shared residency order) against the wishes of a child's legal parents. The circumstances where parents are at risk of having gamete donors succeed in making this kind of claim is thus restricted to cases where there is a confluence of factors in addition to genetic relatedness, such as a history of a caregiving, that together suggest that such an order is appropriate.

But herein lies the problem. If genetic ties add weight to a claim for parental responsibility then we could imagine this case unfolding along these general terms. The court might find that A developed a relationship with the twins that, on its own, was not substantial enough to merit a shared residency order. However, because of the added weight of the genetic connection, the court might find that a shared residency order is in fact merited.

The possibility of this kind of result is problematic because it creates an incentive for parents using donor gametes to restrict the depth of the relationship they permit their children to form with their gamete donor. If parents want to prevent gamete donors from having a legal right to access and authority over their child, they must in fact ensure that the depth of relationship their child forms with the donor is lower than that sufficient to avoid this consequence in the case of a genetic stranger.

The tension here lies in the fact that the relevance of genetic ties in disputes over parental responsibility is legally justified by the welfare interests of the child; presumably the court's view is that children benefit in a special way from having contact with their genetic parents. Paradoxically this very fact results in a legal incentive for individuals who use donor gametes to restrict the formation of relationships that are thought to be especially beneficial for their children's welfare.

There is of course lots of room to question the welfare benefit children get from contact with gamete donors. But putting this question aside, there is a real possibility that this ruling will have a chilling effect on the relationships parents allow their children to form with gamete donors. If we decide that such relationships are in fact beneficial, what might be best for children's welfare is for the law to downplay the importance of genetic ties so that the formation of these relationships is not disincentivised.

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Of course people should be accountable as the parents of their own offspring! ( - 15/09/2015)
It would chaos if the law did not name people as parents on the records of their own offspring and double chaos if they did not hold them accountable for the care and rearing of their offspring as well.  That's just the way it is on this planet in every country a positive maternity or paternity test is sufficient to grant an order of child support and shared custody unless the child is unsafe in their care do to some proven legal infraction.  And  parents who decide willingly to let other people take care of their children on a permanent basis until they are 18 are expected to court rules for the protection of their kids from being transferred as if they were property either for charity or profit.  Why on earth would we exempt anyone with offspring from compliance with the law?  Nobody would ever say that it would be good for someone to abandon their parental responsibilities for their own young after all they caused their dependent state who else owes it to their children but them to care for them?  A person has an interest in receiving care from the two individuals who actually owe it to them and a person has an interest in knowing and being known to his own family and having legal kinship within his own family.

"Lady Black agreed that 'the mere fact that the appellant is a genetic parent and/or that she pelayed a parental role would not dictate the making of a shared residence order'."

What possible other reason could there be for determining parental responsibilities than being responsible for the existence of a dependent human being?  Children are people, not property, you can't earn a parental relationship with time and effort anymore than you can buy it with money, the relationship exists only when someone has produced offspring.  Identify all the other people you want to rear children other circumstances but your not identifying who is a parent whose responsible for the child your identifying guardians or adoptive parents who are responsible by choice and appointment.  Someone has to grant them the permission to take on that responsibility.  Nobody grants parents parental responsibility they just identify them and hold them accountable.  

If the courts are considering effort or Donor contracts as valid reasons to call someone a parent then they've determined that humans are for sale.
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