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University of
New
England
UN
E
Should paternity be linked to sexual intercourse?
Michael Eburn
School of Law
UNE
6 July 2005 ALTA Conference, Hamilton NZ 2/12
University of
New
England
UN
EIntroduction
• This paper will look at paternity and the misplaced focus the law places on sex to determine who has paternal rights and responsibilities.
• There are two reasonable options (if a choice is needed) – biological or social.
• But the law uses sex.
6 July 2005 ALTA Conference, Hamilton NZ 3/12
University of
New
England
UN
EPaternity and family law
• ‘… the natural meaning of the word [parent] of a child is the biological mother or father of the child and not a person who stands in loco parentis.’ (Tobin v Tobin (1999) 24 Fam LR 635).
• Also – adopting parent.• A man who consents to AI procedure.
6 July 2005 ALTA Conference, Hamilton NZ 4/12
University of
New
England
UN
EState legislation
• Defines who is a father, and who is not.
• Sperm donor is not the father.
• Where a woman has a male partner (or female in WA and NT) who consents to AI, that partner is a parent.
6 July 2005 ALTA Conference, Hamilton NZ 5/12
University of
New
England
UN
EAssumptions
• Every child needs a father.
• A family is the nuclear family – mum, dad, kids (and the dog?)
• Anything else is a departure from the norm or best.
6 July 2005 ALTA Conference, Hamilton NZ 6/12
University of
New
England
UN
EArtificial insemination
• Legislative schemes assume child will be born into nuclear family.
• Sperm donor will be anonymous and will have no involvement with the child.
• BUT not everyone behaves as the legislators expect them to.
6 July 2005 ALTA Conference, Hamilton NZ 7/12
University of
New
England
UN
ERe Patrick
• Donor was known.
• Donor wanted to be involved in child’s life.
• Not so unusual.
6 July 2005 ALTA Conference, Hamilton NZ 8/12
University of
New
England
UN
EThe choice
• Either: Biology orSocial relationships
define ‘father’.
• In fact the question is ‘did they have sex?’
• Consider the story of Neville?
6 July 2005 ALTA Conference, Hamilton NZ 9/12
University of
New
England
UN
ENeville
• His sister’s partner Mary, and child A.
• An anonymous donation and child B.
• A ‘one night stand’ and child C.
• His sister’s partner again, and child D.
• Biological – ‘father’ of all 4.
• Social – uncle to A and D.
• Legal – father to A and C.
6 July 2005 ALTA Conference, Hamilton NZ 10/12
University of
New
England
UN
EAll biological fathers are
‘father’.
• Recognise children’s interest in biological history.
• Children’s interests are paramount.
• Recognise need to take responsibility for reproductive decisions.
• Sperm donors are not protected from responsibility.
6 July 2005 ALTA Conference, Hamilton NZ 11/12
University of
New
England
UN
ESocial relationships
• Give effect to people’s choices –– the promise to parent, or not.
• Recognise the reality of children’s lives.
• Men and women can contract out of relationships.
• Sperm donors can’t insist on families without responsibility.
6 July 2005 ALTA Conference, Hamilton NZ 12/12
University of
New
England
UN
EDo we need to make a choice?
• Recognise that a child can have more than two parents.
• Roles and responsibilities can be determined on a case by case basis.
• Any person who obtains a parenting order is also liable to pay child support.
6 July 2005 ALTA Conference, Hamilton NZ 13/12
University of
New
England
UN
EConclusion
• If we have to make a choice as to who is the father, it should be biological or social.
• It is in fact whether the parents had sex.
• Heterosexual, medical model.
