' "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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Email: j.c.mccandless@lse.ac.uk