New Issues in Legal Parenthood1
A new Law Commission report makes some major recommendations regarding changes to the legal rules that determine parenthood. The report, "New Issues in Legal Parenthood", follows a review of the legal meaning of "parent", the purpose of parenthood laws, and the importance of the legal relationship between a parent and a child.
Many of the issues covered in the report arise from changes in family structure and developments in new birth technology and DNA parentage testing. Consequently not all children have the benefits and protections of legally recognised parental relationships, or have access to accurate information regarding their genetic* and gestational* parentage, says the Law Commission.
The Law Commission makes 30 recommendations. Key ones are:
- extending the presumption of paternity to men living with the child's mother in opposite sex de facto and civil union relationships;
- developing a comprehensive DNA parentage testing regime;
- enabling sperm or egg donors to "opt in" to legal parenthood with the agreement of the recipient parent(s), which in some cases will result in a child having three legal parents;
- putting in place a system for transferring parenthood in surrogacy arrangements; and
- taking measures to ensure children have effective access to genetic and gestational lineage.
Breakdown of Key Recommendations
1 Presuming men to be fathers
Recommendation: To extend the group of men who can be presumed to be fathers to include men in opposite sex de facto and civil union relationships, so long as the men were cohabiting with the mother at the time of conception.
Current situation: Only husbands can be presumed fathers and this is whether or not they were cohabiting with the mother at the time of conception. A recent law change allows the court to make a declaration of non paternity if the man is proved not to be the father.
2 A DNA parentage testing regime
Recommendation: To develop accreditation standards for DNA parentage testing laboratories and disallowing use of non-accredited results in court or by government agencies.
Current situation: There is no current accreditation system, though courts decide whether the evidence of parentage is reliable enough to be used.
Recommendation: Government considers making subsidised parentage testing available where real doubt exists as to parentage.
Current situation: Full costs must be borne by the parties
Recommendation: One parent is able to test the parentage of their child so long as the other parent has been informed and has not objected and the child or young person who is old enough to consent to testing has done so.
Current situation: NZ laboratories require consent of both parents while many laboratories marketing via the Internet will test without the knowledge or consent of the other parent or even a child who is mature enough to give consent.
Recommendation: A court is able to prevent testing if the other parent objects and there are compelling reasons to do so.
Current situation: This does not exist. It is part of the proposed regime where both parents don't agree to testing.
Recommendation: A court is empowered to order any person, including a child or young person, to undergo DNA parentage testing where there are reasonable grounds for doubt about parentage and there are no compelling reasons against it.
Current situation: The court can only make recommendations though recently the power to consent on behalf of a child has been confirmed.
3 Enabling gamete* donors to be parents
Recommendation: Where persons give gametes with the agreement of the recipient/s that they will be a full parent to the child, then that person should be able to "opt in" to legal parenthood by a simple pre birth court process that is confirmed upon proof of genetic parenthood. In some cases the result will mean a child having three legal parents.
Current situation: A child can only have two legal parents and people who give gametes for artificial conception cannot be considered a legal parent, even if they and the legal parent/s want and intend them to be.
4 Parenthood in surrogacy arrangements
Recommendation: The law should enable intending parents in surrogacy* agreements to be granted interim legal parental status by the court prior to conception or birth while at the same time extinguishing on an interim basis, the surrogate mother's parenthood. However, she should have a window period of 21 days after birth, to contest the parenthood of the child in court. If this occurs, legal parenthood, guardianship and care of the child will be determined by the court on the basis of the child's best interests.
Current situation: The only way intending parents can become legal parents is by adoption where the rules are inappropriate in a number of ways. Most parents care for the children informally without the protections and benefits to the child that come from a legal parental relationship.
5 Identity and Children
Recommendation: Gaps in the law which do not provide for the genetic lineage of children to be recorded should be removed. Specifically: all birth certificates should have a statement that additional information to that on the birth certificate may be accessed by the named person.
Current situation: Although the HART Act will require clinics to retain and pass on donor information, the child will not know to access it unless told by their parents they have been donor conceived.
Recommendation: People wishing to conceive with donated gametes or through surrogacy arrangements should be required to undertake education to assist in telling their children. There should be subsidised counselling for people using the voluntary register and subsidised DNA testing
Current situation: A little counselling is given to adults as part of all fertility treatment but the identity issues need to be addressed systematically and comprehensively. No provision for counselling has been made for those using the voluntary register. The individuals pay the full cost of DNA testing.
Recommendation: Parents who have children conceived in private donor sperm or surrogacy arrangements should be required to pass on identifying information to the Registrar of Births, Deaths and Marriages when they register the birth.
Current situation: There are no such requirements.
Glossary of Terms
For a copy of the report ($15.00), call Colleen Gurney, Assistant Publications Officer (04) 473 3453, com@lawcom.govt.nz Level 10, 89 The Terrace, PO Box 2590, Wellington. The document can also be downloaded from http://www.lawcom.govt.nz/ |
1 Words marked with an asterisk(*) are defined in the Glossary of Terms
Contact for Enquiries
The Ministry of Agriculture and Forestry
Pastoral House
25 The Terrace
PO Box 2526, Wellington
Tel: 0800 00 83 33
Fax: +64 4 894 0720
Contact this person
