The nuclear family is a historical artefact. Is the law behind the times?

What is a parent? It’s one of those deceptively simple questions, and it isn’t getting any easier. The High Court this week had to grapple with one of the many curly dilemmas presented by our ever-expanding universe of relational possibilities.

The specific problem at hand was to determine whether a particular sperm donor has parental rights under Australian law. In answering that with a yes, the court clarified some issues and left some others in an unfortunately uncertain state.

In 2006, a man voluntarily provided his semen to his female friend, and she used it for artificial insemination. At the time, the man believed that he was going to be the child’s father in the sense that he would be closely involved in her life and provide care and support to her. He was included on the birth certificate and has “an extremely close and secure attachment relationship with the child”.

As events transpired, when the child was nine, the mother and her female partner (who hadn’t been in the picture at the time of conception) decided to move to New Zealand. The father went to the Family Court to try to stop this, get shared parental responsibility orders and obtain a raft of other orders governing shared custody. Pretty standard for a Family Court dispute, apart from the threshold question of whether he was, as a matter of law, the child’s parent at all.

The law has come a long way since the UK Parliament first legislated in 1839 to allow a mother the right to ask a court for custody of her children under the age of seven (prior to that, they were automatically the father’s property). The principle that the first priority is what is in the best interests of the child came in 1873.

No-fault divorce brought custody and maintenance to the fore as major social issues, as the idea of complex parental relationships became unexceptional. Still, until relatively recent times, this all existed in the comfortable context of biological singularity: sperm = dad; ovum = mum.

Now, there are no safe assumptions, although some do linger on — including the notion that each child can only have two parents. The Family Law Act (FLA) still insists “that children have the benefit of both of their parents having a meaningful involvement in their lives”, definitely suggesting that the upper parental limit remains set at two.

That rather old-fashioned notion is causing a lot of trouble because even the biological reality, let alone the social context, doesn’t comfortably support it. Take the case of a donated sperm, used to fertilise a donated egg, then implanted in a third person’s uterus. It’d be hard to say that any of those three people has more or less of a claim to parenthood at a physical level, but the law insists on trying to decide for them.

The High Court has now clarified that, while the FLA makes some specific rules about who is or isn’t a parent of a child, those rules add to the range of parenthood rather than limit it.  

One thing the FLA says is that, in a case of sperm donation, if the mother has a partner at the time and everyone consents to the conception, then the sperm donor is not a parent. However, in this case, the mother’s partner didn’t come along until later. No legislative presumption applied, and the question of whether the father was legally a parent had to be determined according to the “natural meaning” of parent. In other words, it’s going to be a case-by-case approach.

For sperm donors, this may be good or bad news depending on whether they want to be a legal parent or not, but it certainly opens up a much wider possibility for them to seek involvement in the life of a child born from their donation, later on and perhaps after a change of mind. For mothers and their (non-biological parent) partners, the uncertainty that this decision unlocks is quite profound.

Obviously, the people most affected are same-sex couples. The law is attempting to adapt to the equality of same-sex marriages and de facto relationships; but, at the same time, it has to contend with biological matters and some questions with no correct answer. Among them: what is the legal status of a sperm?

Illustrating the difficulty is the state of the law in the UK: if you donate sperm there through a licensed clinic, you will not be the legal parent of the child; however, if you donate privately, then you will be the legal parent. Pretty bright line for a very blurry distinction.

Inevitably, we’re going to have to face up to a much bigger conversation here, accepting that parenthood is a subjective, social concept, not a scientific fact. And, as a consequence, that the variety of familial relationships to which we extend the recognition and protection of the law will, by necessity, continue to grow. The nuclear family is already a historical artefact.