Legal embedding planned lesbian parentage. Pouring new wine into old wineskins

Abstract

The legal and de facto role of a known sperm donor in the life of the child constitutes an ongoing challenge in both private and legal decision-making. It is a problem framed by several legal and societal developments. Artificial insemination with donor sperm has been employed by heterosexual couples with fertility problems for several decades. When donor insemination was used by married heterosexual couples, and the donor was usually anonymous, no significant problems arose concerning the latter’s role in the life of the child. According to the pater est presumption, the husband of the mother of the child became the legal father by operation of law. Even if the donor’s identity was known, his paternity could not be established either by himself, or by other persons. The situation has now changed significantly, as donor insemination has become extensively employed in what is called planned lesbian parentage, by lesbian couples who are now legally permitted to marry or be in a registered partnership. Moreover, in an increasing number of jurisdictions, they can now become legal parents without having to resort to step-parent adoption. At the same time, growing acknowledgment of the right of the child to know its origins has initiated a legislative trend towards the abolition of the anonymity of the donor. This has resulted in a decreased in the number of donors, which has led many lesbian couples to search for donors themselves, and to make private arrangements with them. There is also evidence that when given a choice, lesbian couples are more inclined to give preference to a known donor than heterosexual couples are. Such donors are often willing to play a certain role in the life of the child. Their wishes may range from a desire to see the child a few times a year, to a wish to become a legal parent vested with shared parental responsibility. Alongside the lesbian couple, the addition of such a donor means that a plurality of persons wish to assume a parental role. These multi-parent families are not catered for in the current legal framework, modelled on a heterosexual, monogamous nuclear family, and thus allowing for no more than two legal parents. However, this traditional legal framework has recently been challenged in Canada, first by the ground-breaking Ontario case AA v BB, then by the Uniform Child Status Act 2010, which was followed by the British Columbia Family Law Act 2013, allowing, under certain conditions, more the two persons to become legal parents of a child in case of assisted reproduction. Restriction of the number of legal parents to two still remains the reality in the vast majority of jurisdictions. In the shadow of this legal restriction, the role and legal position of the known donor vis-à-vis the duo-mother becomes a subject of private negotiations. There are a number of studies showing how lesbian mothers alone, or in conjunction with the donor, ‘devise new definitions of parenthood’ 1