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<<< Part 1   Part 3 >>>

Three-part article in Justice of the Peace

 

‘Ditching Daddy, or Tesco Ergo Sum

Part 2 - Second Reading of the IVF Bill in the Lords’

 

Francis Bennion*

 

172 JPN (19 Jan 2008) 23

Doc. No. 2008.002

 

Page 23

 

Introductory

 

Last week Part 1 of this article explained how the House of Lords is tackling certain provisions relating to fathers in the Government’s Human Fertilisation and Embryology Bill [HL], which I am calling the IVF Bill 1. It also pointed out that these provisions of the Bill are ambiguous.

 

Three of the peeresses concerned have separately been in touch with me about Part 1 of the article, and one of them tells me she has sent it to the Government for consideration. I understand the Government are considering moving an amendment, but this will not be known for certain until the debate resumes on January 15, when the House of Lords is expected to complete its consideration of the IVF Bill (I am writing this on January 12). It will then be sent to the House of Commons. Next week the final part of this article will report on how the Lords dealt with the point in its proceedings on January 15.

 

As promised in Part 1, I will now report the views of various peers on the point concerning fathers. First, a reminder about the exact nature of this point. The IVF Bill proposes to amend the Human Fertilisation and Embryology Act 1990 in various ways. In this three-part series I am concentrating on one aspect only, the need for a father.

 

Currently, section 13(5) of the 1990 Act requires that a woman shall not be provided with IVF treatment unless account has been taken of the welfare of any child who may be born as a result of the treatment “(including the need of that child for a father)”. Clause 14(2)(b) of the IVF Bill would remove this parenthesis. Clause 23 makes a similar amendment to section 25(2) of the 1990 Act, which requires the Human Fertilisation and Embryology Authority (HFEA) to provide guidance on the carrying out of the duty to take account of the child’s welfare.

 

Seventeen peers discussed the father point in the debate on the second reading of the IVF Bill. In Part 1 I reported the views of the Archbishop of York, Dr John Sentamu. Here is a selection of the other views.

 

What the peers said

 

The former Lord Chancellor Lord Mackay said the provision in the 1990 Act regarding the need for a father was negotiated in the House of Lords with considerable care and was accepted unanimously “and I think also in the House of Commons”. He said that since male material is still necessary for the procreation of human life it seems extraordinarily undesirable, the very moment when the child comes into existence, to leave that out of account altogether.

 

Lord Mackay added that the law should recognise that nature requires male material in a living human being as well as female. That should be acknowledged in considering the welfare of a human being about to be brought into the world regardless of whether he or she will ultimately have a father in any ordinary sense of the word, though another male who is within the framework of his society and friendship may well be the one who would be sufficient to satisfy the condition.

 

The Liberal Democrat ex-family planning doctor Jenny Tonge had a retort for Lord Mackay: of course every child needs a biological father, but children can be brought up well without either parent in some circumstances. She added, provocatively:

 

“Two of my grandchildren have been brought up without a mother for the past three and a half years, but they have been surrounded by a loving family and a social network, the requirement for which is also mentioned in the 1990 Act and remains in the Bill. That network of support for any future child is more important than either parent; there must be a social network and an extended family.”

 

More provocation followed. Her party, said Lady Tonge, has never discriminated against gay people, “which is what this debate is really about”, and would therefore support the removal of the words about a father. This added a note of mystery. What on earth was she talking about?

 

In a lengthy contribution, Lady Deech, a former chair of the HFEA, hoped that we will keep the law as it stands, what she called the careful and sensitive compromise worked out in 1990, “which has held firm for all that period”. The requirement is, after all, only to consider the need; it is not an absolute ban on treatment. It is well known that many single women and gay couples receive IVF treatment at clinics and have children.

 

Lady Deech surmised that the argument for removing the father requirement is that it is now public policy to treat all families equally and to avoid any discrimination between persons on grounds of gender and sexual orientation “and because there are inconsistencies and unknowns in the way

 

Page 24

 

that the provision is applied”. There is no need for a father, it is said, especially given that there is provision in the Bill for two women to be the sole legal parents of a child.

 

Does a child really not need a father? continued Lady Deech. Clearly, the need for a mother remains unchallenged—it is implicit in the way the law works. I think, she said, that a child does need a father.

 

“First, we are where we are. To remove the requirement that a child needs a father is to make a fresh statement to the effect that a child does not need a father. It sends a message to men, at a time when many of them feel undermined as providers and parents . . .”

 

Lady Deech added that Government policy is that men should pay for their children after divorce and separation and that they should take responsibility. Divorce law judges hold that contact with a father after divorce is a good thing. Recently, the Government have sought to encourage single women to name the father of their babies on birth certificates. We are told that children who find out that they are adopted or created by donor insemination need to know their fathers. The United Nations Convention on the Rights of the Child says that every child has the right to know and to be cared for by both parents “and of course anonymity has been removed from sperm donors, which must mean that they are important”.

 

The current law does no more than require that a doctor checks whether there is a male in the social circle—for example, a grandfather—and causes parents to reflect on how to cope with the situation.

 

“Indeed the requirements have been much watered down by the HFEA code which has done its utmost to ensure that there is no discrimination without good reason. I would argue that the present law is not discriminatory. It applies to men and women: heterosexual couples, homosexual couples, married, cohabiting and others. Even if it were discriminatory, it is justified on the ground that the welfare of the child is paramount.”

 

Lady Deech said that there is a wealth of research showing that children need fathers, not just a parent. Children need to see complementary roles, the relationship between the sexes, a microcosm of society as they grow up. There is also research showing that children born to lesbian parents do well, but it is limited research, mostly carried out by one researcher in this country and of necessity the children are very young. Some research shows that those children suffer from the inevitably confused and secretive family relationships that occur.

 

Lady Deech added that recent reports have placed Britain at the bottom of the international league tables for the welfare of children “and we know that boys without parents fail at school, that they turn to worse role models and that fathers play a great part in the upbringing of their children”. She ended:

 

“A survey reported this morning shows that 77 per cent of the public would keep the law the way it is. After all, if a woman is pregnant and her husband dies during the pregnancy, do we not say that is a tragedy? Do we not allow her to claim damages? Many of the same arguments apply to naming two women on the birth certificate but time does not permit an exploration of that at the moment . . . It takes courage to stand up for what is right for children; women have won respect for their bodies and their roles in the past few years; but it is time to take care of and to support men in this enterprise as well.”

 

Lord Alton and Legal Fictions

 

The independent pro-life peer Lord Alton said he would like all references in the Bill that seek to create a legal fiction around parenthood to be deleted, since to deny to a child that he or she had a real biological father would be nothing short of the state colluding in a deception. An estimated 800,000 children in Britain already have no contact with their father. To deliberately add to that number is downright irresponsible.

 

“One of the deepest questions that we ask ourselves is, ‘Who am I?’. The right to lineage affects us all, and uncertainty over parentage can profoundly unsettle people. The popularity of television programmes such as ‘Who Do You Think You Are?’ illustrates the natural desire to know one’s family history. The guidance of the Oracle of Delphi to the Lydian King Croesus was that to be happy, he must know himself. That is true for us too.”

 

Lord Alton added that the Government’s decision to remove the reference to the need for a father from law and social policy is a huge error. Women should not be interrogated at IVF clinics about their sexual orientation or their marital status and many single women are loving and exceptionally good mothers, but the need for a father, and the right to know who he is, are the issues. He agreed with Lord Warner when he said, “children are not accessories to adults’ preferences”.

 

Shirley Williams said she strongly supported what Lady Deech had to say about retaining the original 1990 reference to the need of a child for a father. While she recognised that a pair of men or women, or for that matter a woman on her own, can be marvellous parents that was beside the point.

 

“My main concern is that research shows conclusively, in fields such as education and educational achievement, that a child who has a male model as well as a female model is likely to do considerably better than one who does not have that male model, because . . . our society is made up of men and women. They often have rather different approaches, even rather different language: women’s language is much more often associational, and men’s language is more often directly related to a particular issue.”

 

Lady Williams referred to research done by Professor Carol Gilligan in the United States and her book In a Different Voice.

 

“She goes at length into the ways in which little girls

 

Page 25

 

and little boys develop. In no sense is one more able than the other. Simply, one is rather different from the other, and a child will benefit from understanding from its babyhood what a man and a woman constitute and how they should complement each other . . .”

 

Unless we give men a full sense of what it is to be a father and a member of a family, concluded Lady Williams, we will simply find ourselves with more and more dysfunctional families and boys who do not quite see what their place is in society and the family.

 

Lord Hastings referred to a Department of Health press release stating that “in the light of developments in technology and society’s attitudes” the Bill will place Britain at the forefront of scientific research. He thought on the contrary society’s attitudes have moved towards “a desperation, not just an understanding, for fathers to be consistently committed to the children whom they are responsible for creating in whatever form they are created”.

 

Citing a recent survey, he argued that society’s attitudes are increasingly in favour of acknowledging the power of fathers, of naming fathers and of fathers’ duties and responsibilities. “If that is the case, some measures in the Bill seem to be inconsistent with society’s expectations and the changes that have taken place.”

 

A Father’s Need for a Child

 

We have heard about the child’s need for a father, said Lord Winston; how about the desperation of a father’s need for a child? In the Book of Genesis, Abraham asks: “God, what will you give me seeing I go childless?”. He uses a Hebrew word meaning abandoned, desolated, because he does not have a genetic son. There is a notion here that he has lost his immortality, and that is something that infertile patients feel. This desperation leads patients to try all sorts of treatments which are not justified.

 

Lord Winston added that is one of the problems with the current regulation. The West End of London, for example, abounds with treatments which have no scientific justification, no proven success rate and simply exploit the desperate desire of these people to have children.

 

The Bishop of Newcastle said it seems extraordinary that at this time in our society’s life we state in the law that in the welfare and wellbeing of a child there is no need any more for a father. We hear it said again and again that children lack good male role models today, yet we are writing fathers out of the script.

 

Again, said the Bishop, it is surely very odd that the law might provide a birth certificate showing two women as sole parents of the child. I well understand that comes from a desire not to discriminate, but to have two women, or, indeed for that matter, two men on a birth certificate as parents is a very odd way to put things. So why provide a birth certificate naming two persons of the same sex, when it is simply not true?

 

Lord Elton said it is an extraordinary thing, grotesque and unpleasant, to try to write fathers out of the lives of children before they are born. As he was saying that the sensibilities of those who may be bringing children up after they are born must come second to the interests of the child he was interrupted by Lord McIntosh of Haringey who said:

 

“My sister is a lesbian, and she and her partner decided to have a child. Her partner bore the child, with the active agreement of a man friend. My sister has no rights whatever over that child. She had no legal power to become the equivalent of a father. Fortunately, it has worked well, and the child has grown up happy and contented. The effect of the existing law is to take away the equivalent of a father, and the effect of this Bill would be to give my sister rights that would be equivalent to those of a father. It works in the opposite direction from that which Lord Elton is describing.”

 

Lord Elton retorted that all the statistics and the subjective impressions bear out the international belief that a significant male role model has a defining input in the behaviour of children. “Those statistics cannot be contested and they chime in with what my instinct tells me and my religion teaches me is the right thing to do.” He added that anonymity has a very costly downside:

 

“We are treating human material with new forms of manipulation, the results of which may not become apparent in those who result from them—the product of those manipulations—until ten, fifteen or even fifty or sixty years on. If the actual parentage of those individuals is not known, lessons which may be vital for the wellbeing of humanity generally may simply elude us.”

 

A Muslim View

 

Lord Ahmed said that as a Muslim he believes deeply that all life is sacred. Muslims have a profound belief not just in the sanctity of human life from conception onwards but in the importance of knowing your antecedents, the root from which you spring. He argued that no Parliament has the right, nor does any law, to deny a child knowledge of his origins.

 

Lord Northbourne said that for most people, and especially for some fathers, the removal of that word will imply that the Government do not really think that the role played by fathers is important. It will also seriously downgrade the standing of the traditional family in the long term. It will downgrade the role of fathers to leave some children in limbo, not knowing their biological father. It will promote the idea that the mother’s wishes are more important than the wellbeing of the child and it will encourage single parenthood.

 

Why then, he asked, are fathers important? Parenting is one of the most important jobs in the world. It is also one of the toughest, especially if you are poor. It is very expensive; it is hugely time-consuming; and it is often emotionally draining.

 

I suggest, said Lord Northbourne, that the father has four roles. The first is giving physical, financial and emotional support to the mother. The second is as a secondary, but still very important, attachment-figure for the child, adding to its self-esteem and sense of security. The third is as a role model, showing a boy what it means to be a man, building his self-esteem, encouraging him to work at school and developing

 

Page 26

 

by example his social skills. The fourth is as a role model to both boys and girls, showing them how a man and a woman can live and work together in a loving relationship.

 

Lord Northbourne added that it is possible, but not proven, that a second mother can perform the first two of the roles that were traditionally those of the father, but she certainly cannot substitute for the father as a male role model. When most boys reach the age of seven or eight, they instinctively start to ask themselves what it means to be a man. They seek out heroes to be their role models. If there is a father, the child will instinctively love and admire him and will turn to him. If there is not, however, he will look elsewhere. With so few male teachers in primary schools today, he may have little alternative but to find a role model in a gang leader on the street.

 

I recognise, Lord Northbourne said, that there are some bad fathers and some families with poor relationship skills. To be fair, some of us have been saying this for a number of years and have been pressing the Government to do more to encourage and empower young men and women to improve their relationship skills and to teach them as part of the schools curriculum. Of course there are also wonderful mothers who manage to bring up their child successfully on their own, but this does not alter the fact that the statistics show that, across the board, children who grow up with a dad, or with a committed surrogate dad such as a grandfather, are likely to have better chances in life, both at school and later.

 

My main concern, concluded Lord Northbourne, is that the Bill will send a message to fathers that it does not matter if they abandon their child, and it will send a message to all prospective mothers that it does not matter whether their child has a dad. This Government are making a very great mistake in giving the impression in the Bill that fathers do not matter.

 

Lady Hollis Alleges Discrimination

 

A dissenting note was struck by Lady Hollis. Do I believe, she asked, that the need for a father should be a consideration for the clinician and the phrase reinstated in this Bill? No, I do not.

 

Either the need for a father contained in a phrase or clause in the Bill carries meaning or it does not. Currently it is in the Act and, she said, it has become meaningless, vacuous, empty rhetoric.

 

It is not usually salient to the decision whether to offer IVF treatment that the woman is single. Instead the assessment is made on whether the woman is in sound physical and emotional health—or, in more conventional parlance, not “flaky”—and has family support.

 

If we reinsert the phrase, said Lady Hollis, we are doing so because it should be meaningful; otherwise there is no point, and why bother? It would mean that clinicians would and should question the whereabouts of the putative father. If there is no such person, what then? Will they still permit treatment, in which case the question was intrusive but irrelevant, or refuse it, which means discriminating against and denying single women and lesbian partners the right to IVF. Even if they are young and fertile enough and may have unassisted births and even though, after the most intense and rigorous scrutiny, they may have adopted a child, they may not receive IVF.

 

Fathers do belong in children’s lives—I firmly believe that, Lady Hollis ended. It is just the phrase that does not belong in the Bill. Either the wording is meaningless, as it is now, in which case it should not be there; or it is meaningful but the answer ignored, in which case it is irrelevant; or it is meaningful but got around and manipulated, and we end up with doctors deciding which families are desirable and which are undesirable, with some families and some children being judged second-class but perhaps smuggled under the ropes. If it is meaningful and upheld, it is utterly discriminatory.

 

Lady O’Neill said that, based on the experience of being a parent on her own and of living most of her life in some way or another in the extended family, she thought children need about five parents. Fathers are needed. Biological fathers are not touched by this legislation but we must face the reality that the social father is very often not the biological father. The social father may indeed be a stepfather, close friend of the family or an uncle. The role of the father is indisputably essential and it must be fulfilled for every child and, while especially so for young boys, also for young girls.

 

Lady O’Neill said we must protect that, but in doing so we may be unwise to leave the “need for a father” on the face of the legislation. It is a highly ambiguous phrase which has not proved practical in the way in which IVF clinics operate. We need not challenge in a way that many of our fellow citizens find offensive the importance of fathers in fixing with legal certainty the parental rights of those who actually bring children up.

 

The Liberal Democrat view

 

Lady Barker summed up for the Liberal Democrats. She said that in recognition of conflicting and very deeply-held religious and moral views they, like the Conservatives (but unlike Labour), believe that this question should be open to a free vote. It is also her party’s policy that individual women and lesbian and gay couples should not face discrimination when they seek fertility treatment.

 

The Joint Committee summarised the approach taken in the Bill as, “moving towards the concept of parenthood as a legal responsibility rather than a biological relationship”, said Lady Barker.

 

“I was tempted to say that this is a reflection of modern life, but perhaps it is more a reflection of family life, which is, and always has been, complex and messy. Section 28 of the 1990 Act talks about how the husband of a woman who receives fertility treatment shall be treated as the father of the resulting child, not the donor of the sperm with which the child was created. To use the phrase used by some noble Lords during the debate, that is a lie. It is not true. But we saw and understood in 1990 the concept of social parenthood.”

 

Since Lady Warnock’s report, Lady Barker added, not only science and scientific knowledge has changed, but families have changed. It was the considered view of Parliament that there should be legal recognition of civil partnerships. “I say to those peers who have said throughout

 

Page 27

 

the debate that they do not wish to be discriminatory in any way, that some of the statements that have been made about fatherhood and parenthood can only be that.”

 

When heterosexual people agonise long and hard and decide that adoption is not the right course for them or for the children, we support them through the physical and emotional trauma of fertility treatment and we rejoice with them when it is successful. But, went on Lady Barker, when single or gay people make that same difficult considered decision, we are suddenly surrounded by phrases like “children are not accessories” and “nobody has the right to a child”. Of course nobody has the right to a child, but nothing in the Bill suggests that they do. All that is suggested is that [all] people are given the same consideration as potential parents.

 

I suggest, Lady Barker ended, that in seeking to retain the rule about fathers we risk eliminating those single women and gay people who have taken a responsible attitude towards parenthood, who are willing to subject themselves to the intrusive questioning that is quite rightly conducted when people present themselves for this sort of treatment and who are the responsible parents we should be encouraging.

 

Does Gender Matter?

 

The Conservative Earl Howe said there is some evidence that the presence of a second parent rather than the gender of that parent counts more in terms of a child’s welfare. At the same time, many of us are instinctively uncomfortable with the notion that the presence or absence of a father in a child’s life should be completely irrelevant to any assessment of its likely welfare.

 

Equally difficult are the questions surrounding the definition of parenthood where a child has been donor-conceived. The concept in the Bill of parenthood as a legal responsibility, rather than a biological relationship, is one that many find unacceptable. But in the normal way, a child regards as his parents the people who nurture and bring him up.

 

A different question arises, said Lord Howe, over a child’s right to know about his or her genetic origins. At the moment, the Bill merely gives a child, when adult, the right to inquire about them. We need to ask whether that is enough. The issue of what information should be included on the birth certificate of a donor-conceived child is one about which the Joint Committee was considerably exercised; and I believe that in Committee we need to confront that issue.

 

Winding up for the Government, Lord Darzi belatedly gave an explanation of the Government’s thinking on a child’s need for a father. He said that the proposal to remove the reference is not motivated by any attack on fathers or on the concept of fatherhood. Nor is it motivated by a simplistic desire for political correctness. The Government recognise clearly the extremely important role that fathers can and do play in their children’s lives and the consequences that can follow where a relationship breaks down. Many measures taken by this Government are aimed at strengthening the role of fathers and ensuring that they are aware of their responsibilities.

 

Lord Darzi said we are only talking about a few hundred children. There is no ban on single women or same-sex couples receiving assisted conception treatment. There is no requirement in the law as it stands that there must be a father or any man involved in the upbringing of the child. The outcome intended to be achieved by the current law is therefore extremely unclear—or as Lady Warnock said, ineffective and wishy-washy.

 

Lord Darzi said that another point in favour of the change is that from a medical standpoint there may be no need to involve the services of a clinician at all: informal arrangements for artificial insemination can take place. We must be careful that there is no perverse incentive for some people to avoid regulated services and the quality and safety assurances that they provide.

 

Lord Darzi ended by saying that the Government came to the view that, on balance, the reference in the 1990 Act to the need for a father should be removed in favour of the general duty to consider the welfare of the child. He said:

 

“This does not prevent us from valuing the role of fathers in their children’s life, but it recognises the crucial role played by all parents.”

 

Conclusion

 

So how will this question be decided by the Lords? Next week I will be able to give the answer on a matter of great public importance. Of course it will still remain to be seen what the Commons make of it. For the moment I will give the last word to the writer of a letter to a national newspaper, John Owen of Caerphilly.

 

“A child doesn’t need a father to be happy, but believe me, it helps. I have a father-shaped hole which has affected me almost every day of my life. I was probably saved by the grammar school that gave me not only an intellectual challenge, but a perspective, perhaps biased, of how men behave. Fatherless children have only half the road map of life. I feel my development was stunted by the lack of a father.” 2

 

. . . . . . . . . Part 3 >>>>>>

 

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*Francis Bennion is an author, constitutional lawyer and draftsman of state constitutions. A former UK Parliamentary Counsel and member of the Oxford University Law Faculty, he is currently a Research Associate of the Oxford University Centre for Socio-Legal Studies.

1. Part 1 of this article can be accessed at www.francisbennion.com/2008/001.htm

2. The Observer, December 2, 2007.