Family law in England and Wales has taken many great strides to equalise the status of LGBTQ+ families in recent times, but that task is not yet complete. The expansion of legal parenthood beyond the current dyadic model would drive progress even further. It would further the aims of family law by maximising children’s welfare, protecting the rights of parents, and improving the coherence of the family justice system. This essay shall proceed in the following fashion: firstly, the prompt shall be analysed to identify the crux of the debate. Then, the argument in favour of expanded parenthood shall be stated according to the benefits for LGBTQ+ families, and the family justice system as a whole. One of the main arguments in opposition to expanded parenthood shall be considered and rebutted; and the discussion shall conclude with a summary of the extended argument. In the interests of brevity, this essay will not propose specific legal reforms which would enable children to have more than two legal parents. It will also not comment on the policy considerations which are relevant to this question.
The Aims of Family Law and the Significance of Legal Parenthood
The prompt poses a normative question: would family law be better if children could have more than two legal parents? To answer that question, one must establish the aims of family law as they relate to parenthood. Firstly, family law exists primarily to maximise the welfare of children. This was captured in the comments of Lord Nicholls of Birkenhead in Re G (Children) (Residence) (Same Sex Partner) [2006] UKHL 43: “In this case, as in all cases … the court seeks to identify the course which is in the best interests of the children. Their welfare is the court’s paramount consideration.” However, family law also aims to support the rights of adults, as evidenced by provisions which protect privacy in family life, and which enshrine significant relationships in legal forms like marriage and adoption. My argument is that expanding parenthood is normatively desirable because it would both improve the welfare of children, and because it would support the rights of adults as parents.
Benefits for Children, Parents, and the Family Justice System
Expanding legal parenthood would carry significant benefits for children, parents, and the system.
For children of LGBTQ+ families, the law would better reflect their lived experience. As Emily Jackson argues in “What is a Parent?” in Diduck and O’Donovan (eds) Feminist Perspectives in Family Law, it would remove the confusion which arises from the knowledge that one person they view as a parent, such as a sperm donor, is a “legal stranger”. This argument is strengthened by the evidence that an increasing number of LGBTQ+ families are choosing known donors. Furthermore, it is surely in children’s best interests for them to see that their multi-parent family is legally valid and equal. In A v B and C [2012] 1 WLR 3456, it was argued that there are substantive benefits for children’s welfare when they have relationships with all of their parents: “[The lesbian mothers] may have had the desire to create a two-parent lesbian nuclear family completely intact and free from fracture resulting from contact with the [known donor father]. But such desires may be essentially selfish and may later insufficiently weigh the welfare and developing rights of the child that they have created”. This quote echoes a long tradition in family law of emphasising the importance of a secure relationship between parent and child, albeit typically in the heterosexual, dyadic context. See further: Re M (a minor)(contact: conditions) [1994] 1 FLR 272. Relying on the concept of parental responsibility as an alternative to multiple parents is deficient, as it cannot legally capture and protect the parent/child relationship in the same way. An argument could also be made, in a longer discussion, on the basis of children’s right to know their genetic heritage, a right which has been highlighted by both the Law Commission and UNICEF.
As for LGBTQ+ parents, be they social, genetic, or gestational, there is great symbolic value in the expansion of legal parenthood. Law has a unique labelling power, and the label of ‘parent’ is both profoundly important to those who are raising children, and a tool in the normalisation of LGBTQ+ families. As suggested by Leanne Smith in “Tangling the web of legal parenthood: legal responses to the use of known donors in lesbian parenting arrangements”, it is also plausible that under the Article 8 ECHR right to family and private life, those who have well-established relationships with children, and also genetic ties (such as donors), are entitled to the legal status of ‘parent’ and the superior rights thereby entailed.
Finally, it is argued that the expansion of legal parenthood would improve the coherence of the family justice system by enabling judges to weigh the rights of all parents in a balanced and honest way. The cases involving multiple parent families have not been dealt with by the courts in a positive or sensible manner. In Re G and Re Z, the High Court granted two sperm donors leave to apply for contact with their children, who were being raised in two lesbian couples. There was a palpable discomfort in the language of the judgement, with repeated reference to the donors as “fathers”. The confused language reflected the acute dilemma facing the court: here was a multiple parent family without a legal framework to expressly balance all the parents’ rights. This was captured in Baker J’s observation that “as a matter of law, [the lesbian couple was] right to describe [the donors] as strangers to G and Z. But in another sense, they are not strangers”. Other cases have arisen in which it is clear that an expanded model of legal parenthood would have allowed clearer analysis of all the parents’ rights in relation to the child, such – MA v RS (Contact: Parenting Roles) [2012] 1 FLR 1056, where a confusing preference was expressed for the legally empty concept of “principal and secondary parenting”. In the jurisdictions of California, British Columbia and Ontario, legal frameworks which allow the registration of three parents have so far succeeded in avoiding the pitfalls - linguistic, jurisprudential, and practical - which have mired the cases mentioned above.
The Argument Against Expanding Parenthood
The current approach confines the task of judges to that of deciding how two people alone exercise parental rights over children. It could be argued that the expansion of parenthood complicates that task to an unknowable degree. However, this argument is flawed. Firstly, the courts already balance parental rights with rights of parties with PR, as well as between legal parents with equal status. Thus, whilst the task would be more complex, it would not be entirely new. It is also clear from the case law that, despite the supposed dyadic model, judges are currently being forced to balance the rights of multiple parents. The recognition of three or more legal parents would make the court’s task less complicated and uncertain than its current state.
