A Question for the Lawyers

Here’s a question for the legal ones amongst you.

Let’s say we get gender-neutral marriage. Will the wife of a woman who gives birth be allowed to register the birth of her wife’s child? If so, does that implicitly mean that the law will no longer assume that both married spouses are the biological parents of any children born in wedlock?

At the moment the law assumes that any children born within a marriage are the biological offspring of the two married people unless it is demonstrated otherwise. That is why married fathers can register the birth of their children (the law assumes they are the child’s biological father) and unmarried fathers cannot (the law requires the mother to state who the father is). However, introduce gender-neutral marriage and you see the problem. It is blatantly obvious that any child born to two women cannot be the biological offspring of both. If spouses can register the birth of a spouse’s child, then that means someone who is not an obvious biological relative of the child can register the birth. Why should unmarried fathers be denied this right? Furthermore, why should the law therefore assume that the husband of a wife who gives birth is the biological sire? Surely that creates two different kinds of marriage – one where the law assumes a spouse is the biological sire and one where it does not. That’s not equality.

What do you think?

30 Comments on “A Question for the Lawyers

  1. Valid point. I suspect this link will be useful in your next blog post http://www.homeoffice.gov.uk/publications/about-us/consultations/equal-civil-marriage/consultation-response?view=Binary

    ‘9.10 Therefore, in respect of non-consummation, we are proposing to create an exception for same-sex couples in a marriage, meaning that they would not be able cite non-consummation as a basis for annulling their marriage. Same-sex couples cannot currently annul their civil partnership on the basis of non-consummation. Opposite sex couples will continue to be able to annul their marriage on the grounds of non-consummation. By maintaining this position, we are not altering the legal position unnecessarily’

    So, it is a two-track system.

  2. I am not sure why you are still fretting over this. The law makes it illegal within established churches like the C of E and the Catholic Church. It means that you won’t ever have to touch or deal with the issue. Personally I am quite happy with that as I wouldn’t touch people of your sort with a bargepole anyway and now won’t have to.

    Perhaps you should move out to Uganda where “God’s Word” is resulting in the death penalty being introduced for “repeat offenders” (ie. gay people in stable relationships) thank to the efforts of your holy brethren Rick Warren and Scott Lively giving the traditional Christian view (ie. all gay people are demonically possessed, rampantly promiscuous, disease carrying child rapists who God says are worthy of death ) to the populace over there. Something you can really praise your “God” for.

    The Quakers and the Unitarians have no issues with it and have already made plans as soon as the legislation is passed. Which it will be.

    Should also remind you that all forms of non-procreational sex are by definition, sin, in that they go against the natural/God intended function which is reproduction. According to the Church Fathers.marriage was a result of the fall of man, a merely worldly device to prevent sin and something seen as a distraction from the holy life. It’s amazing how secularized you people have become through the centuries, particularly when it comes to fulfilling your own base animal desires. Needless to say I reject the spirituality of married priests. They have (as Paul says in Timothy in regards to young widows wanting to remarry) turned their backs on their first love and thus bring judgement upon themselves.

    The only objection I do have in regards to the law is that it doesn’t force churches to put up “No Sodomites allowed”. It would be a useful guide.

  3. Not a lawyer, but isn’t that situation analagous to the one now where a married couple have been undergoing IVF with a sperm donor because the man is known to be infertile? Let’s say for argument’s sake that the husband is a eunuch and therefore obviously incapable of being the biological father of the baby. Legally, as I understand it, he can still register the birth because being a parent is really about who changes the nappies not about whose DNA you have (contra Jeremy Kyle).

    • ‘Legally, as I understand it, he can still register the birth because being a parent is really about who changes the nappies not about whose DNA you have (contra Jeremy Kyle)’.

      Well, no. The presumption of paternity is the legal recognition of the assurances of fidelity given in marriage. Even if the prospective father died during the pregnancy, he would be presumed the father of his wife’s newborn child.

      In the case of IVF, donors relinquish parental rights by consent: Donors sign a consent form, declaring that they have been counselled and understand the implications that by donating through an HFEA-licensed clinic, they will not be legally responsible for any child born as a result of their donation. ‘You will be asked to provide information about yourself which a child born from your donation can access when they are 18 years old. Prospective patients and parents of donor conceived people can also access anonymous information you provide’.

  4. Hark! I hear the sound of barrels being scraped. This rather reminds me of the similar stuff on how gay or straight marriages are consummated – it eventually emerged that almost no-one gets a divorce for non-consummation these days (they go for ‘unreasonable behaviour’), and when asked by Stonewall, the govt couldn’t come up with any examples of it. Similarly, the number of heterosexuals hugely exercised about inequities over who registers the birth of a child is unlikely to be large — well at least until C4M think it might be a straw worth clutching at and decide to upset themselves about it.

    In fact these kinds of arguments I think do the pro-gay-marriage camp a service: incredibly petty situations are presented as an insurmountable problem, instead of a minor legality to be ironed out. It’s human situations treated as – ahem – defective website code – instead of holding a rounded adult view of how we all are. Do keep at it Peter.

    • ‘ncredibly petty situations are presented as an insurmountable problem’. Of course, they’re not insurmountable. You just create a two-track system (as is now proposed for reconciling the obvious differences and for the sake of political expediency) as they did in Spain and Canada. Oh, and thereby expose the lie that providing same-sex couples with access to marriage wouldn’t change the social meaning of marriage at all.

      • You’re saying that the social meaning of marriage will change because of the rules about *who registers a baby*. Srsly? When you hear the chip, chip, chip of the hammer beneath your marriage, it will be at the thought of all those queers heading for registry offices?

        In any case I fail to see the difference between the gay situation and any hetero couple who’ve conceived by donated egg or sperm. Or are they undermining your marriage too?

        Half the problem of conservatives is that they can’t express what they are really upset about: my working theory is it all boils down to horror at having to share social status. Which isn’t very Christian, of course.

          • I’m heartened to know that the soldiers of God may be scared off with some well placed sarcasm. I suspect things are going to be rather easier over the next year than I at first anticipated.

              • I made some perfectly substantive points which I’m happy with. Whether you want to reply or find ways to eat up webspace without addressing those points is entirely up to you.

            • Your admission of myopic discernment might preclude comprehension, but here’s the reality.

              An institution maintains a shared social meaning. Although it can evolve, let’s look at an example. I guess that the casual use of the word, ‘queen’ does not undermine the monarchy. However, in the UK, legally and constitutionally, The Queen is the female monarch. Does it undermine the monarchy to change the legal references to suit the casual meaning? According to you: ‘Of course, not’. To us, it does.

              Equally, we have an institution of British citizenship, Automatic citizenship is limited to natives of the UK and their immediate descendants. Non-natives can become citizens after a certain length of residence, but only at the discretion of the Home Secretary. Foreign-born residents, who just happen to be born elsewhere, who love and would die for this country are excluded. Perhaps, you would declare any form of citizenship entitlement to be xenophobic and discriminatory, but I don’t hear any liberals crying out for change. Changing the marriage institution is special pleading beyond the proportionate rights of the minority demanding it.

              From your response, if the conditions of citizenship by naturalisation was changed to be automatic after one year’s residence in the UK, I suspect that it wouldn’t phase you one bit. ‘Are they undermining citizenship by birth too?’ and ‘it all boils down to the horror of having to share status’ would a typical retort.

              Yet, citizenship and marriage are both claim rights. They are not merely a freedom from hindrance, but impose a duty upon others for validation, support as equivalent. If two things are not equivalent, they don’t deserve support as such.

              ‘In any case I fail to see the difference between the gay situation and any hetero couple who’ve conceived by donated egg or sperm. Or are they undermining your marriage too?’

              We are not comparing those situations because birth registration must always involve the attendance of the mother or a notarised declaration from her authorising the father/parent (adoption procedures would be different).

              The problem of liberals is getting them to understand that birth registration is useful for more than identifying the so-called ‘social reality’ of who you want to raise your child. It should also be reliable enough to be used in conjunction with generational medical histories in order to identify key genetic traits in the family.

              Once you establish the concept that a legal father at birth is established by a written statement of consent to a procedure (HFEA 2008), rather than establishing a presumptive paternal adoption from the biological father’s donor consent, the document of birth loses that value to society. Once you can replace the combination of the birth document and the Parental order (that’s all a heterosexual IVF couple need) with a blatant falsehood of a birth certificate identifying two parents of the same sex, the document of birth is merely a legal fiction.

              As a result of the changes implemented, a child is now presumed to result from a biological impossibility: two mothers, or two fathers registered at birth. Sod the genetic family history, eh? So, Tell me how these changes apply equally to same-sex and heterosexual couples? and don’t stop there, explain the benefit to society of changing birth certificates retroactively to reflect a person’s transgender identity.

              And don’t waste my time or Peter’s with your political triumphalist claptrap.

              • It’s a choice to post or respond here, so both you, I and Peter can only decide to waste our own time: no-one else can waste it for you.

                I don’t see that your analogies hold much water: the Queen is the name for a single person, and to use it for other things would cause confusion: nobody’s going to suddenly not know whether you are married or not when gay marriage goes through.

                The status of someone as a citizen or not in this country has huge implications for sharing of resources and space: you are not going to have less space, food or work open to you when gay marriage goes through.

                Plenty of people already have the ‘wrong’ person listed as a father on their birth certificates – not just because of egg/sperm donation, but because of good old heterosexual adultery. Issues around genetic testing are a fascinating, but are not a uniquely or even overwhelmingly gay issue, by headcount. If you chat to doctors (I do some work in healthcare) there’s a whole bunch of tricky ethics around a minor who has disease X, which can only be inherited genetically from a father who – ka-boom – is not in fact carrying it. Does the doctor tell the father that he’s been cuckolded etc etc? There are plenty of fictional birth certificates knocking around already, always have been.

                But as I said in the first place, this is a tiny issue which just doesn’t affect the whole nature of what a marriage is. Citeing examples of ‘other things that are altered if you widen a group definition’ is neither here nor there – and it strikes me that the analogous (and also the slippery slope) arguments come up when the actual thing in question can’t be argued on its own merit.

                • ‘I don’t see that your analogies hold much water: the Queen is the name for a single person’

                  Wrong. The Queen is not the name for a single person. It is the name of any female who inherits the throne. It is therefore an enduring institution. The issue is not whether or not she (the individual) is the Queen, as changing the meaning would affect any female successor to the throne. Your counter-example implies it wouldn’t, but it is what the term means legally that counts.

                  ‘The status of someone as a citizen or not in this country has huge implications for sharing of resources and space.’

                  So, it’s not the principle of equality or just about valid entitlement, otherwise you would consider my analogy to be valid. It’s the impact on resources. Some principle. So, what will it cost to privilege a class of people with marriage benefits who are not entitled?

                  ‘Plenty of people already have the ‘wrong’ person listed as a father on their birth certificates – not just because of egg/sperm donation, but because of good old heterosexual adultery.’

                  So, the law’s purpose is, by design, to cover up deception. You’re really are priceless. And to justify the loss of genuine hereditary information (used to trace family ancestry), you further mention falsified birth certificates.

                  To top it all off, you say ‘this is a tiny issue which just doesn’t affect the whole nature of what a marriage is’. So, to you, the accuracy of a person’s family ancestry and genetic history can be jettisoned in favour of a genderless definition of marriage. Even though, the combination of a parental order and accurate birth certificate would do the trick for natural and assisted reproduction, it just wouldn’t get rid of that ‘pesky’ biological father completely .

                  To you, the legitimate concerns of the rest of society are expendable for a patent falsehood. Your arguments have far too many holes.

                  • You appear to be arguing that because i support gay marriage, I must also be a supporter of throwing open the borders and assisting anyone who shows up, regardless of the country’s ability to sustain them? Don’t be silly – or if you still think they are analogous, tell me how you’ll be impoverished by the marriage of someone else, in the same way as a completely open borders policy would impoverish the UK.

                    By the way, did you know that until 2007 it wasn’t in fact necessary to have more than one parent’s name on the birth certificate (http://news.bbc.co.uk/1/hi/education/6756381.stm) – and until fairly recently, no-one would be that bothered about the medical business of genetics. I think you should look squarely at the real causes of your anguish about this – it’s not really about buggering things up for doctors or genealogical researchers, is it? Did you give birth certificates two moments thought before you thought it might give you leverage against the gays? I suspect not.

                    If you are very upset by the thought that many birth certificates contain lies, then that’s something you need to take up with the heterosexuals. From the government’s point of view, I think they are overwhelmingly concerned that a child should be claimed and cared for. If it would make you happy to have X (birth mother) and Y (adoptive mother) on a birth certificate, I don’t think anyone would have an objection to that — it might widen the accuracy of heterosexual birth certificates as well, at least in some cases: our gift to you.

                    • 1. You don’t take responsibility for the logical flaws in your arguments. You merely move onto the next.

                      2. You use unrelated hyperbole. I used the analogy as an example of the *principle* of extending the right citizenship to include foreigners who have been resident for one year. The level of impoverishment has nothing to do with the principle of extending an institution to other people: residents who just happen to be born elsewhere. How is your life impoverished, if they pay the same taxes as the rest of us do?

                      3. The signatures of both parents was not necessary because marriage records could be applied through the presumption of paternity. The parental order is now the only addition needed to verify the transfer of parenthood. Assisted reproduction does not justify changing the process to accommodate a blatant falsehood.

                      4. Your attempt to probe my reasons for challenging gay marriage could be levelled at your justification for excluding those who just happen to be born elsewhere from citizenship. Your attempts to invalidate comparisons with citizenship aren’t really about the country’s ability to sustain them, are they? Xenophobia. See! we can all play ‘find the victim’!

                      5. Once again, you justify falsehood by legal design by declaring that heterosexual individuals started it. How puerile.

                      Thanks for offering to rectify the accuracy of birth certificates. How rich, coming from someone who supports *legislating* for a biological impossibility on a birth certificate. Especially, when a cross-reference from a certificate of biological origin to the parental order is all that’s needed to accommodate assisted reproduction.

                      To you,a birth certificate is not about biological origin, but the united hopes of the two lovers who truly wanted that baby. Facile, at best.

                    • I think the point about 4. is that it’s not difficult to see how the addition of millions more from outside a club (in this case, the UK) would inconvenience those within it (housing, greenbelt etc etc etc). You’ve yet to explain how your marriage would be substantively harmed by a bunch of gay people getting married. Instead you’ve got immensely exercised about the queen, immigration and other irrelevant factors because you’re struggling to find much in the way of direct harm in the case in hand.

                      As I said, there’s some extremely easy and obvious ways of clarifying a birth certificate if society agrees it’s needed for genealogy and/or genetics as well as a statement of who the child’s de facto parents are. You can get amazingly upset about this, or you can find really quite simple solutions in record keeping, which again do no harm to heterosexual marriages. As I said somewhere near the beginning, there’s the tendency to decide that something quite small is insurmountable – or must include some huge and painful change. I see no evidence of that in anything you’ve said. I’m still left concluding that the source of your anguish must be elsewhere.

                    • ‘ think the point about 4. is that it’s not difficult to see how the addition of millions more from outside a club (in this case, the UK) would inconvenience those within it (housing, greenbelt etc etc etc)’

                      Come on, Sarah, think. These people are already tax-paying residents. They can work here and contribute, rather than take from our society, but they can’t vote for a better future here in our parliamentary elections.

                      The parallels are totally relevant to maintaining the integrity of an instituion’s purpose. In the post above, I have identified how currently biological families are privileged by the institution of marriage in terms of presumption of paternity and the role of the extended family in caring for the children should the spouse die. The proposals will automatically privilege the non-biological spouse and her family above the extended biological family of the birth mother.

                      It’s clear from case law that the courts have always favoured the biological connection.

                      In combination with HFEA 2008 that denies some children their right to a legal father, you now want to privilege a partner with no biological connection to a child with the automatic presumption of parenthood through marriage that supercedes all extended biological kin on the mother’s side. You see, civil partnership won’t do that automatically and it’s expensive and uncertain.

                      The trick is to keep us looking at what it does to my nuclear family, rather than extended biological kinship that real marriage creates automatically.

                    • Birth certificates are there to record parental rights rather than biology, though – adoption certificates replaced birth certificates in the records

                    • ‘adoption certificates replaced birth certificates in the records’. Really?


                      So. what exactly is an adoption court order, then? So, you would have us do away with adoption procedures and records entirely. Social parenting becomes supreme without the relinquishment of biological rights, eh?

                      Of course, liberals would hold to that, until they consider a person’s biological rights over the life developing in their bodies. Then biological rights make them supremely entitled to kill it off.

              • I’m adopted. I have not traced my birth parents and have no intention of doing so. This I know nothing about my genetic family history. My birth certificate has the names of my adoptive parents. It replaced the original birth certificate which named only my birth mother (and my birth father was foreign so what chance is there of finding him in any case unless i fancy a trip to the USA)
                Its made absolutely no difference to my life, whereas being discriminated against because I am gay certainly has – you can’t justify discrimination by pointing to an unrelated issue which isn’t in the least clear-cut in any case
                Also, what about the many single mums who do not put a father on the birth certificate ?

                • As I have stated elsewhere, adoption, as valid and important as it is, remains *subsidiary* to the rights of capable and responsible biological parents. That is, adoption is provided where biological parenthood has failed, has been relinquished, or is non-existent.

                  As you explain, in some cases, an adoptive parent may even be better than the birth parent. The law cannot assume that this is always the case. However, in every case, there is no presumption that adoptive parents could automatically, without applying for an adoption court, override the rights of responsible blood relations to their children. Primarily because this would leave *all* biological families with responsible married parents vulnerable to intrusion by the State.

                  The birth mother’s right to her children is not in question. It is whether the right automatically conferred on a male spouse: the presumption of paternity, should be conferred on a female partner and thereby subvert the primacy of biological relations. It is a legal fiction to confer paternity, or maternity, an assignment of genetic origin, where it does not exist. The fact that it may have made no difference to you as a adopted child does not justify changing the law for everyone.

                  Single mums may choose to omit the father from the birth certificate. This decision may or may not involve his consent, or even knowledge that he’s fathered a child. It still does not justify the legal system systematically obstructing a legal father’s right. Especially, when that right has not been relinquished.

                  • Given that the law has changed to allow same sex parents to adopt, as a couple, I think it makes absolute sense. Its the change in the adoption law which you should have opposed – and probably did, but that wasn’t the decision taken

                    • In cases of abortion, liberals insist the biological right of the mother over the child’s life is supreme. The child is born and then they insist that the State should have the power to assign that supreme biological right elsewhere to someone who has no biological connection to the child.

                      Absolute sense, eh?

                    • Actually, liberals assert the rights of women over their own bodies which, liberal coming from the Latin of pertaining to a free person, is hardly surprising, nor inconsistent.

                      Misrepresentation, eh?

                    • Which means that we have unassailable rights over the genetic outcomes of our own bodies. In which case, unless these biological rights are relinquished, they supersede the rights of those who have none. Ergo, the biological right should not automatically be assigned to a non-blood relation, or the state.

                      Yet, this is what genderless marriage would mean, since marriage assigns the rights over offspring to both spouses equally.


  5. The real issue at stake is amending HFEA 2008. For gay couples, the rules were changed to enable the female partner of the birth mother in a civil partnership to be recognised as the second legal parent (once both have legally consented), but only if the child was conceived through a licensed UK clinic.

    The problem is that this law is only prospective and limited to conception through licensed UK clinics. It only affects children conceived after 6th April 2009. If the couple have children conceived by assisted reproduction before that date, or elsewhere, the partner of the birth mother has no automatic recognition as the legal parent. So, if they are not civil partnered, she has to go through adoption procedures and seek a residence order to secure her status in the life of the child.

    Same-sex marriage is then the magic wand. Under an amended HFEA 2008, it would grant the same-sex spouse with a presumptive right of parenthood. This is what the Coalition is really after.

    It would make the non-birth mother or father, the automatic parent of any children conceived before 6th April 2009. It would assign a presumption of parenthood to a non-biological partner. Marriage will thenceforward promote a non-biological presumption that can override the rights of extended biological kin. Now, that’s my problem. The government know that case law has always favoured biological families. Genderless marriage laws will put the parental claims of non-biological partners AUTOMATICALLY above those of extended kin. If the birth mother dies, her former civil partner (now spouse) would be able to deny access for the extended blood relatives without recourse to law at all. This is why I re-iterate that marriage upholds the primacy of biological kinship.

    N.B. Currently, the husband’s presumptive right of paternity without recourse to the wife’s explicit consent applies even to assisted reproduction procedures. It would require explicit proof that he did NOT consent to being the father to override the presumption.

    As further proof, the government is quietly conducting a consultation to end the presumptive rights of adopted children to maintain any contact with their biological relatives and siblings

    HFEA 2008:

    Section 35: (1)If—

    (a)at the time of the placing in her of the embryo or of the sperm and eggs or of her artificial insemination, W was a party to a marriage, and

    (b)the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage,

    then, subject to section 38(2) to (4), the other party to the marriage is to be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).

    (2)This section applies whether W was in the United Kingdom or elsewhere at the time mentioned in subsection (1)(a).

  6. So expect the following:

    An amended HFEA 2008 to add an automatic presumption of parenthood by marriage provision, and amended Children Act 1989 overruling past case law to insist courts presume involvement of a legal parent will further the child’s welfare, and, of course, an amended Matrimonial Causes Act 1973. The privileging of blood relatives in the life of a child is viewed as indirect sexual orientation discrimination.

    ‘In its official response to the results of a consultation run earlier this year, the Department for Education sets out the nature of the planned changes. It proposes to insert a clear reference to the importance of shared parenting into the Children Act 1989.

    There will be a new addition to – section1 (2A) – reading:

    (2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

    Restrictions on this presumption will then be set in two additional new sub-sections, reading:

    (6) In subsection (2A) “parent” means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned –

    (a) is within this paragraph if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and
    (b) is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.

    (7) The circumstances referred to are that the court is considering whether to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent other than mother).’

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