NZ Father & Child Society

In recent times, changing social practices, coupled with developments in assisted reproductive technologies, have seen a dramatic increase in the number of children born into families outside the traditional one where the genetic parents raise the child together in a common household.

The Law Commission’s discussion paper New Issues in Legal Parenthood — released in March 2004 — questions whether reform of some of the laws governing parenthood may be necessary.

The key themes of the paper are, first, that children are best supported where their social caregivers have the legal rights and responsibilities to act as effective parents. Secondly, that children have needs and rights to know their genetic lineage.

Of particular interest to fathers are the parts of the review relating to:

The legal presumption of paternity. The current law presumes a man to be the father of any child born to his wife during their marriage or within 10 months of the marriage being dissolved. If the mother and father are not married, there is no such presumption. Should the presumption also apply for de facto partners, or should it be abolished?

The reallocation of paternity when a child has been conceived by donor gametes. For donor-conceived children, parenthood is reassigned by statutory deeming provision. Thus, the husband or male partner of the woman who gives birth is deemed to be the child’s legal parent in place of the sperm donor, provided he knew of and consented to the procedure. If the birth mother is single or her husband or male partner does not consent, the donor father remains a nominal father in law, but has no rights and responsibilities to care for the child or to have a role in his or her upbringing. If the Care of Children Bill becomes law, fatherhood will be completely extinguished in all cases where a child has been conceived by donor sperm. This approach may be in line with the intentions of anonymous donors, but may not take into account the wishes of known donors who wish to play some role in the parenting of the child.

The processes for registering fathers on children's birth certificates. Current statistics indicate that around 6000 children are registered each year with no father on their birth certificate. Given what is known of children’s needs and rights to know their genetic lineage, the paper asks how can theses numbers be reduced, while at the same time protecting people’s rights to privacy.

Situations in which children are conceived or born after their genetic fathers have died. In the United Kingdom a man can be registered as the father of a child conceived after his death with his sperm. There is provision also for a man to be registered as a father of a child conceived after his death using an embryo created before his death using donor sperm. The Act enables a man to be registered as a child’s father, without conferring on the child any legal status or rights as a consequence of registration.

Processes for proving and disproving paternity. Developments in DNA parentage testing also raise a number of issues. What weight should be accorded tests? What consent should be necessary, and is parentage testing always appropriate? Where children have existing parental figures, or where testing is used to disestablish parenthood, is testing consistent with the best interests of the child?

Also considered is the status to be accorded parental status agreements between parties. The existing laws have attracted criticism for being inflexible and failing to reflect the realities of some children’s actual parental care arrangements. Possible changes to the law are before Parliament at the moment, in the form of the Care of Children Bill and the Human Assisted Reproductive Technology (HART) Bill.

Options for reform

In New Issues in Legal Parenthood, the Law Commission suggests a number of options for reform. These include:

• The introduction of parental status orders.
• The notion of enduring guardianship.
• An amended from of adoption which would effect a transparent reallocation of parental responsibilities and rights.
• Enabling known donors to retain their status as a parent.
• Known donors being able to make agreements with recipients mothers that they can register at the court.
• Options for ensuring that children born of donor gametes or surrogacy have information about their birth origins, should they seek it.

The Law Commission is now inviting public submissions on these and other issues. Copies of the paper can be obtained from the Commission's website (http://www.lawcom.govt.nz) or by contacting Colleen Gurney on 04 473 3453 or com@lawcom.govt.nz. For other queries, contact Susan Hall or Claire Phillips on 04 473 3453.

Submissions close 31 May 2004.

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