(with Máiréad Enright & Dr Aoife O’Donoghue) 'Northern/Irish
Feminist Judgments: Judges' Troubles and the Gendered Politics of Identity in
Northern/Irish Courts' LSE Law Policy Briefing Series 17/2016
(with Ruth Fletcher; Yvette Russell; Dania Thomas) 'On Being
Uncomfortable' Feminist Legal Studies (2016) 24 (2) pp.121-126
Since the last issue of Feminist Legal
Studies, we editorial board members have had lots of
conversations about comfort, displacement and alienation. As
we developed the programme for #FLaK2016 we thought about it
as a kind of pulling ourselves out of our comfort zone
(Fletcher et al. in Fem Leg Stud 24:1–6, 2016), if
academic events and journals ever have a comfort zone.
Drawing on a mix of feminist live performance methods and a
science and technology studies-type curiosity for objects of
experimentation, we tried out a kitchen table method of
hosting a live research conversation with activists, artists
and academics over two days (Fletcher in Fem Leg Stud
23:241–252, 2015). But we had not fully anticipated the way
that the Brexit result would contribute to and complicate
discomfort. A fuller analysis of FLaK awaits a later moment,
but here we pick out this one aspect of our
gathering—feelings of discomfort – as they animate the
contributions to this issue in interesting ways.
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(with Marian Duggan) '"Right Thinking People" and Suffering
Through the Politics of Difference in Northern Ireland: A Feminist Judgment' LSE Law Society and Economy Working Paper Series,
WPS 24-2015
This paper forms part of the
Northern/Ireland Feminist Judgments Project. It comes in two
parts: a feminist judgment and an accompanying commentary.
The purpose of a Feminist Judgments Project is to rewrite
the “missing” feminist judgments in significant legal cases.
A driver of the methodology is to put feminist theory and
critique into action, and to show how cases could have been
reasoned and/or decided differently. The case in this
chapter is a clinical negligence claim against a fertility
clinic, which carelessly used the wrong donor sperm in a
woman’s IVF treatment (A and B (by C, their mother and next
friend) v A (Health and Social Services Trust) [2011] NICA
28). The consequences of this mistake were that the children
born from the fertility treatment had different skin colour
to the woman and her husband, as well as each other. The
claim was from the children, as the clinic settled
out-of-court with the parents. Julie McCandless’ feminist
judgment deploys very different reasoning to the original
court decisions, and in part reaches a different conclusion.
Marian Duggan’s commentary explains and problematizes the
approach of the feminist judgment, as well as putting the
broader identity issues signalled by the case in context.
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review of Heather Douglas, Francesca Bartlett, Trish Luker,
Rosemary Hunter (eds) (2014) Australian Feminist Judgments Project: Righting
and Rewriting the Law (Hart: 2014) in Irish Jurist (2015) (54)
pp.180-182
‘Genetically challenged: the determination of legal
parenthood in assisted reproduction’ in Tabitha Freeman, Susanna Graham, Fatemeh
Ebtehaj and Martin Richards (eds) Relatedness in Assisted Reproduction:
Families, Origins and Identities (Cambridge University Press, 2014), pp
61-79 (with Sally Sheldon).
A Comparative Study on the Regime of
Surrogacy in EU Member States (May 2013, published by
the European Parliament) (with Laurence Brunet, Konstantina
Davaki, Claire Marzo, Janeen Carruthers and Derek King)
This study provides a preliminary overview of the wide range of policy concerns relating to surrogacy as a practice at national, European and global level. It undertakes an extensive examination of national legal approaches to surrogacy. It also analyses existing European Union law and the law of the European Convention of Human Rights to determine what obligations and possibilities surround national and transnational surrogacy. The study concludes that it is impossible to indicate a particular legal trend across the EU, however all Member States appear to agree on the need for a child to have clearly defined legal parents and civil status.
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‘Cinderella and her cruel sisters: parenthood, welfare and
gender in the Human Fertilisation and Embryology Act 2008’ 32(2) New Genetics
and Society 135-153 (2013)
This paper takes as its starting point the comparative
parliamentary time spent discussing the welfare of the child
and parenthood provisions of the Human Fertilisation and
Embryology Act 2008. While the former commanded over 8 hours
of debate – most of which was spent discussing the proposed
removal of the words "the child's need for a father" from
the legislation – the parenthood provisions generated
approximately only one hour of debate. This seems curious,
given that the parenthood provisions (which govern the
attribution of legal parenthood following certain fertility
treatments governed by the legislation) are likely to have
much more of a "real life" effect, and given that subtle
changes in the wording of the welfare provision from “need
for a father" to "need for supportive parenting" are
unlikely to make a great deal of difference to actual
clinical practice. In contrast, extending legal parenthood
to a second female parent from the moment of a child's birth
has important symbolic as well as practical legal
consequences for two women having a child together. This
paper begins by setting this curious scene and explaining
why it is problematic. The first part of the paper focusses
on the reform of the welfare clause and will contextualize
the extensive discussion of this clause in socio-political
concerns about assisted reproduction, the role of men and
masculinity in family life, and the role of genetics in
underpinning these concerns. Against this backdrop, the
second part of the paper then analyzes why so little
attention was paid to the parenthood provisions, pointing to
the "common sense" assumptions which typically shored up the
discussions surrounding this part of the legislation. This
part of the paper will also draw attention to a number of
significant gender-based connotations in the parenthood
provisions.
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‘The Role of Sexual Partnership in UK Family Law and Policy:
the Case of Legal Parenthood’ in Daniela Cutas and Sarah Chan (eds) Families:
Beyond the Nuclear Ideal (Bloomsbury, Science, Ethics and Innovation series:
2012: chpt 2)
' "No Father Required?" The Welfare
Assessment in the Human Fertilisation and Embryology Act
(2008)’ 18(3) Feminist Legal
Studies 201-225 (with Sally
Sheldon)
Of all the changes to the Human
Fertilisation and Embryology Act 1990 that were introduced
in 2008 by legislation of the same name, foremost to excite
media attention and popular controversy was the amendment of
the so-called welfare clause. This clause forms part of the
licensing conditions which must be met by any clinic before
offering those treatment services covered by the
legislation. The 2008 Act deleted the statutory requirement
that clinicians consider the need for a father of any
potential child before offering a woman treatment,
substituting for it a requirement that clinicians must
henceforth consider the child’s need for “supportive
parenting”. In this paper, we first briefly recall the
history of the introduction of s 13(5) in the 1990 Act,
before going on to track discussion of its amendment through
the lengthy reform process that preceded the introduction of
the 2008 Act. We then discuss the meaning of the phrase
“supportive parenting” with reference to guidance regarding
its interpretation offered by the Human Fertilisation and
Embryology Authority. While the changes to s 13(5) have been
represented as suggesting a major change in the law, we
suggest that the reworded section does not represent a
significant break from the previous law as it had been
interpreted in practice. This raises the question of why it
was that an amendment that is likely to make very little
difference to clinical practice tended to excite such
attention (and with such polarising force). To this end, we
locate debates regarding s 13(5) within a broader context of
popular anxieties regarding the use of reproductive
technologies and, specifically, what they mean for the
position of men within the family.
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‘The Changing Form of Birth Registration?’ in Fatemeh Ebtehaj,
Jonathan Herring, Martin Johnson and Martin Richards (eds) Birth Rites and
Rights (Oxford: Hart: 2011) pp.187-204
‘The Human Fertilisation and Embryology Act (2008) and the
Tenacity of the Sexual Family Form’ (2010) 73(2) Modern Law Review
175-207 (with Sally Sheldon)
The new parenthood provisions set out in Part 2 of the
Human Fertilisation and Embryology Act 2008 have been attacked as dangerous
and radical, offering a ‘lego-kit model of family life’ and a ‘magical
mystery tour’ in how legal fatherhood is to be determined. In this paper, we
explain what is innovative about these new provisions but also explore what
they owe to deep-rooted traditional assumptions about the family. Relying
both on published documentation relating to this reform process and a small
number of key actor interviews, we trace the imprint of what Fineman has
described as the ‘sexual family’ model on the provisions. We conclude that
the way that parenthood is framed within the legislation relies on a number
of important normative assumptions which received very little scrutiny in
this process. We also highlight a number of tensions within this framing
which, we suggest, may create future problems for judicial determination.
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‘Legal Embodiment: Analysing the Body of Healthcare Law’
(2008) 16(3) Medical Law Review 321-345 (with Ruth Fletcher and Marie
Fox)
‘Status and Anomaly: Re D (contact and parental
responsibility: lesbian mothers and known father) [2006]’ (2008) 30(1)
Journal of Social Welfare and Family Law 63-73
‘Recognising Family Diversity: the ‘Boundaries’ of Re
G’ (2005) 13(3) Feminist Legal Studies 323-336
In Re G, the Court of Appeal awarded a joint residence
order to the appellant, who was the lesbian ex-partner of the child’s full
biological mother. The award also indirectly vested the appellant, a social
parent, with parental responsibility and extended a body of case law to
same-sex couples, which had until now only been applied to heterosexual
couples. The initial purpose of this note is to outline the legal issues of
the case in the context of the framework of parental responsibility set out
in the Children Act 1989, putting forward a test of ‘parental fitness’
(which focuses on active ‘care’ as its central consideration) for social
parents who must appeal to the court’s discretion to obtain parental
responsibility. Secondly, the note offers at once a positive reading of Re G
while highlighting a number of reservations centring upon continued legal
preference for the ‘sexual family’. It is argued that while the legal
recognition of ‘family diversity’ and parenthood remains modelled on this
‘sexual family’, the relaxation of family ‘boundaries’ (despite legal
victories such as Re G) will remain limited.
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please note: