Lecture 3: Parenthood, Parentage, Parental Responsibility
1. Definition of “parent”
There is no longer a straightforward question of biology/genetics. Part of the reason for this,
is because:
o Reproductive technology has moved very quickly: Surrogacy [gestational/egg
donor/both]
o Gamete donation: Sperm, egg
o Mitochondrial donation: 3 parents
In Roman law: Mater semper certa est? This means that ‘the mother is always certain’ [in
law] as she who gives birth.
Also we have to talk about psychological/social parenting, this includes step-parents,
adoption (legal ties), fostering, special guardianship, kinship care, donor gametes/non-
gestational surrogacy, non-genetic ties (e.g. same-sex couples), other jurisdictions.
How does society define “the parent”? In psychology, the child welfare is the key factor in
relation to the definition of “the parent”. Is it child centric? Attachments. In the case of
sociology, it is said to be a social construct. And finally, to anthropology, ancestor worship?
Differing aspects of parenting? Variety of understandings of parenthood.
However, could the definition be adult-centric? There are different views about the blood
ties/genealogy (adoption, surrogacy, gamete donation). This impacts upon rights/interests,
such as in relation to identity (well-being, welfare), nationality, ethnicity, religion, cultural
heritage (adoptions), medical records, birth certificates, passport. In the past, used to prevent
inheritance (illegitimate). “Origin deprivation” (Diver, 2013).
2. Judicial “right” to parent
In this case, we need to take into account Article 12 ECHR, which is the right to marry and
found a family and also article 8 ECHR, right to respect for home, family, private life (and
correspondence).
Moreover, an important aspect of international law is the Child Abduction and Hague
Convention. In the case of domestic law, there is the right (to apply for) contact, residence,
parental order.
3. Re G [2006] see Baroness Hale
House of Lords decision in a case where the biological mother of children conceived by
insemination during a lesbian relationship was seeking to overturn the Court of Appeal's
ruling that her ex-partner should have primary care. Appeal allowed.
The key finding in the case was that the High Court and Court of Appeal had not taken
sufficient account of the fact that the appellant was the biological mother of the children.
Baroness Hale points out that the novel circumstances of the case distracted the lower courts
into relying too much on the behavior of the appellant and not on the biological basis of her
relationship with the children. Sets out 3 key elements of parenthood.
o Legal Parenthood: Who is deemed in the eyes of the law to be the parent.
o Genetic Parenthood: Relates to whose sperm or eggs led to the creation of the child.
o The social parent is the person who carries out the day-to-day nurturing role of a
parent.
It is concluded that the legal definition of ‘parent’ needs to be flexible.
4. “Right” to relinquish parenthood
See Kearns v France (2010) 50 EHRR 33: An irish mother, relinquished baby in France. In
this case, there is an anonymous birth took place, ….
Mirar el caso del chico que se fue de vacaciones a España, y debido a una enfermedad no
volvió y la madre pidió que volviera a su país (Nigeria??). Ver el caso en civil III.
Case: Webster (The Parents) v Norfolk County Council & Ors (Rev 1) [2009] EWCA Civ 59
(11 February 2009) --- Child protection (How the local services have to balance the
protection of the child and the rights of the parents).
5. Maternity/Motherhood
The Human Fertilization and Embryology Act 2008 governs assisted reproduction. Sperm
donor’s identity can be revealed to a child who seeks to discover the donor’s identity if the
sperm was donated after April 2005. s 33 (1) – see also 2015 Regulations.
The Act essentially repeats Roman law – mater semper certa est, this means that the mother is
always certain. Gestation – NOT genetic links. Egg donation
When we are talking about motherhood, we are also refereng to single sex partners/spouses
(in the case of two females). This is established and controlled in section 44 [1] HFEA 2008.
It establishes the female parenthood conditions of the non-gestational mother. It needs written
consent focus (the signature is important). There is a reference to “close relationship”, but
this is a grey area, this is not necessary for mother and partner to.
In the case of anonymity, the sperm donors cannot remain anonymous in the UK. However,
egg donors do. It is the child right to know their identity. Human Fertilisation and
Embryology ( Mitochondrial Donation) Regulations 2015: Regulations permit and regulate
Mitochondrial Replacement Therapy designed to help mothers who carry mitochondrial DNA
diseases.
In the case of paternity, it has to do with genetic. There is a legal presumption of paternity but
in can be rebutted. There is a statutory recognition of assisted reproduction. Also there is a
adoption order/parental order. DNA testing has replaced legal presumptions to some extent.
6. Child rights/interests
7. Surrogacy
Surrogacy involves an agreement whereby the ‘gestational mother’ sometimes called the
‘surrogate mother’ agrees to bear a child for someone else ‘ the commissioning parent or
parents’. Legal issues:
o International issues: Immigration, nationality, child protection‘contractual’ issues.
o Commissioning parents may renege e.g. if child is disabled.
o Surrogate parents may wish to keep child.
See: Paradiso and Campanelli v. Italy ECHR, GC, 24 Jan. 2017, Application no. 25358/12.
This case is brought up because the child is removed from the parents, on the grounds that
there is o biological relationship between them. The case eventually is brought to the ECHR.
The Court found that their Human Rights has been breached but the child created bonds with
the other family. The Court talked to the interference of the court affected with the family
life. Read the case.
Re Z [2015] is an important case (changed the law)
8. Child Abduction
Mirar los casos de Juana (Fue al ECHR?), y ver el ultimo caso de abducción de menores (las
dos niñas abducidas por su padre).
See (Videos):
- Bob (Learning on screen)
- Kanopto
Find info:
- Common Library research briefings
- Ministry of justice
- Law Trove
- Oxford Scholarship – Oxford University Press: Law
- Thomson Reuters: Westlaw Edge UK
