Vivienne Crawshaw: Bill's proposals cut father out of the family loop

COMMENT


There has been a lot of noise in response to the Civil Union Bill. On the other hand certain provisions in the Care of Children Bill have been met with disturbing quiet - provisions which could leave children legally fatherless in some situations.

What many critics of gay marriage fail to appreciate is that gay families are already up and running, many of them including children, planned for and loved. Most lesbian-led families have children conceived through artificial insemination and it is this form of birth technology that the Care of Children Bill provides for.

The bill states that children born into such a family will have only two legal parents - the mother and her lesbian partner. The child's father (even if well known to the couple and loved by the child) will not be a father for any purposes.

Let's take Mary and Anna, for example. They had a good friend, Karl, who is gay. They approached him to see if he would be willing to undertake artificial insemination to conceive a child together with them.

Karl was a little wary. While he liked the idea of having children he was nervous about things not turning out as planned. Forever optimistic however, he agreed to embark on the procedure and without much ado Mary became pregnant.

Everyone was overjoyed and together they planned for the baby's arrival. When she did arrive, she was a girl (Milly) and a bonny one at that. Karl and the two women continued their friendship and began learning the joys and exhaustion that comprises parenting.

Sadly, shortly after Milly's birth Anna had an accident while mowing the lawns and suffered a hand injury. She was off work unexpectedly for six months and was unable to help with Milly as much as had been expected. This caused stress in the family and Karl often bore the brunt of it when he came to see his daughter.

Originally, all three adults had agreed that the child would know his or her father and that he would see the baby regularly. That was what they had all understood. But as the relationship between them soured, they disagreed what Karl's role would be.

Karl thought that he should continue to see Milly independently of Anna and Mary but they disagreed. They said that his involvement was only as a result of their past friendship and did not want him taking Milly away from them at all. Milly already had two parents, they said.

"Milly needs a father like a fish needs a bicycle," Anna muttered under her breath in Karl's direction on a particularly bad day. It was clear that he was no longer welcome in the women's home.

Karl had become very fond of Milly, now aged 9 months. She seemed to recognise him too and was always excited and bouncing when she saw him arrive. He was aghast at the thought that he might not be able to see her again.

He tried to make a time to discuss things again with Anna and Mary, but they refused. They had had enough of his abusive approaches, they said, and declined to discuss anything with him again.

He tried the written approach and carefully composed some email messages but they didn't work either. Finally and reluctantly he approached a lawyer.

The lawyer explained that under the current law he was in a different position than he would have been had he and Mary conceived Milly through an act of sexual intercourse. The fact that Milly had been conceived by artificial means meant Karl was caught by the same laws that governed birth technologies for infertile couples and anonymous sperm donors.

There had, however, been recent High Court decisions confirming the child's right to have a relationship with his or her father in exactly the same circumstances as these. Karl could apply for guardianship of Milly and also for a shared custody order to reinforce the relationship they already shared. Although he did not have rights as a father under existing laws, he was still Milly's father legally.

Under the proposed provisions contained in the Care of Children Bill (which is currently before Parliament) there will be no way that Karl would be able to assert that he is Milly's father. Even though he and Milly have developed a father/daughter relationship he will be known as the sperm donor, not the father.

If he and the women had entered into a written agreement before they conceived Milly that will not alter his status as a non-father but may mean that he is able to ask the court to enforce terms of the agreement.

The new provisions may protect some of the adults in gay families, but leave the consideration of the child's rights (to an identity and to know his or her parents) out in the cold.

The child's needs should come first, not be relegated behind the need by some adults to have their positions secured. Perhaps there should be some noise about these proposed laws and less about others.


* Vivienne Crawshaw is an Auckland specialist in family law.