Three-part article in Justice of the Peace
‘Ditching Daddy, or Tesco Ergo
Part 3 - Having Their Cake and Eating It’
172 JPN (2 Feb 2008) 64
||Doc. No. 2008.003
Parts 1 and 2 of this article explained how the House of
Lords is tackling provisions relating to fathers in the Government’s Human Fertilisation
and Embryology Bill [HL], which I am calling the IVF Bill. Those Parts also pointed
out the ambiguity of
the provisions. This final Part explains how the Lords dealt with the matter at Report
stage on January 21.
It was not an easy point to decide. Let me set it out again
in stark simplicity, for we are dealing here with our society’s bedrock.
The IVF Bill breaks new ground in allowing two people of
the same sex to be registered as the sole parents of a baby born through IVF. With female
joint parents this raised
the question of what was to be done about the provision in the Human Fertilisation and
Embryology Act 1990 which 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.
A parenthesis adds “(including the need of that child for a father)”. Where
does this “need” come in when two women are the sole registered parents or
a single IVF mother has no connection with the child’s biological father?
The Government’s first answer was simply to repeal the now inconvenient parenthesis.
A storm ensued, which I described in the previous Parts. As Lady Deech put it, the Government
had opened up a hornets’ nest.
The Government’s response
On the Report stage the
Government first responded to the storm by withdrawing the proposed repeal of the parenthesis,
which at a stroke removed the difficulty about an ambiguity.
The Lords then grappled with the central point. The parenthesis could scarcely survive
as it stood, for how could the postulated need for a father apply where the sole parents
were two women, or for that matter a lone woman? What about the (unmentioned) need for
a mother where the sole registered parents were two men? What anyway does a father really
contribute in our present society?
This is where the point about our society’s bedrock
came in, but the peers were hesitant in dealing with it. They tiptoed around the vital
question. What was really
meant when the parenthesis about the need for a father was originally inserted in the
1990 Act? What exactly is a father supposed to contribute to a child’s welfare
that would otherwise be missing?
That was the matter which those peers (and there were
many) who wished to retain mention of a father needed to examine for us. They had to
demonstrate by chapter and verse just
how valuable and distinctive a good father is to the upbringing of a child. (No one supposed
the disputed parenthesis was talking about bad fathers.)
Some peers indulged in what might
be called the parenting fallacy. They went to elaborate lengths to show that single mothers,
and lesbian or gay couples, are just as proficient
at parenting as the straightest married pair. Lord Darzi said all the Government wished
to do was uphold “the quality of parenting”. Lady Howarth said that all children
need is a good home and a stable and loving family, and recognised entirely “the
abilities and commitment of many single-sex couples”. Lord Carlile described one
of his daughters:
“The daughter in question, my middle daughter, is
a solicitor, and her partner is an accountant. They are—if they will forgive me—as
square as a box. They live in a provincial town in England, in a splendid semi-detached
house with double-glazed new windows and
a Vauxhall Zafira sitting in the drive. Their child, my grandson, is the picture of health
and his parents are morally exemplary. They happen to be married to each other through
a civil partnership and they are both female.”
All that stuff about the quality
of parenting was missing the point in a big way. It was wilful obtuseness. No one would
doubt that a single mother, or a pair of women in
a civil partnership, if equipped with a sufficient income, could provide good parenting
so that the child was “a picture of health”, had a nice car to ride around
in, and was suitably fed, clothed and schooled.
To similar effect was the reliance on
research findings to show the irrelevance of fathers. Lady Howarth said:
“The most scientifically rigorous studies of the development
of children in same-sex families show that children raised in lesbian mother families
are no more at risk of developing
psychological problems than their counterparts from families with fathers present in
their home . . . The quality of parenting in these families shows very little difference.
They concluded that the presence or absence of fathers in a home from the outset does
have some influence—this is true in single-parent families as well as other families—but
has little consequence in later life.”
The words I have italicised repeat the parenting
fallacy just mentioned. The final sentence is doubtfully based, considering the youthfulness
of the child sample. The answer was
given by Lady Deech:
“The research that has been done on same-sex rearing
of children of course only deals with very young children and is at an early stage. It
is greatly outweighed by
the research going the other way, and begs the question whether children would not do even better
if there were a father.”
So What Does A Father Contribute?
I have carefully studied
what peers said in the three debates about just what it is that a good father contributes
to the welfare of the child in its upbringing. I
a précis of the best descriptions, which I now present.
male material in a living human being as well as female. That should be
recognised in considering the welfare of a human being about to be brought into
the world, regardless of whether that human being will ultimately have a father
in any ordinary
sense of the word, though a male who is within the framework of the child’s
society and friendship may well be the one who would be sufficient to satisfy the
Government policy is that men should pay for their children
after divorce and separation and that they should take responsibility. Divorce law judges
with a father after divorce is a good thing. Children need to see complementary
between the sexes, a microcosm of society as they grow up. If a woman is
pregnant and her husband dies during the pregnancy, do we not say that is a tragedy?
deny to a child that he or she had a real biological father would be nothing short of
the state colluding in a deception. 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
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
to do considerably
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 is much more often associational, and men’s language is more often
directly related to a particular issue. Professor Carol Gilligan in her book In
a Different Voice goes at length into the ways in which little
girls and little boys develop. One is rather different from the other, and a child
will benefit from understanding
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, a member of a family, we
find ourselves with more and more dysfunctional families, and with boys who do
not quite see what their place is in society and the family.
There is a need for
male role models for social cohesion, to reduce underachievement, and to
avoid increasing violent crime and gang culture.
To rule out the male responsibility seems
to go in the face of nature, religion and good sensible politics.
I suggest that the father has four roles: (1) giving physical,
financial and emotional support to the mother; (2) as a secondary, but still very important,
figure for the child, adding to its self-esteem and sense of security; (3)
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 by example his social skills; and (4)
as a role model
both boys and girls, showing them how a man and a woman can live and work together
in a loving relationship. The statistics show that 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.
Being a father is a deeply understood notion in our
and every culture. Fatherhood is not something that is up for legislative redefinition.
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.
Need for a father reflects the wisdom and
natural practice of the centuries. One of the main arguments against cloning is that
the child would be the product of
with no input at all from another. I have a list of about 80 research papers detailing
the unique contribution made by fathers to the upbringing of girls and boys in
terms of social and academic success and psychological and physical health. A household
two parents of different sexes is a microcosm of society. It gives children the
chance to see the complementariness of roles, to hear adult conversation, to see
to see the adjustment between the sexes, to have two sets of grandparents
and a wider family, and to have respect for the opposite sex, not the denigration
it. In a poll
of approximately 1,000 people taken in 2007, 84 per cent of 18 to 24 year-olds
believed that the father is important and 82 per cent of all those questioned thought
absence is adverse. In keeping the law as it is, we will be in line with the rest
of Europe; our law is already more liberal than the laws in the rest of Europe.
people cannot be treated by IVF in France, Italy, Sweden, Norway, Switzerland,
Research demonstrates that fathers bring something distinctive
and important to the parenting process. The CARE Fatherhood Bibliography, which is available
highlights more than 100 pieces of research. An article by Rohner and Veneziano
suggests that the influence of father love on offspring’s development is
as great as, and occasionally greater than, the influence of mother love. Popenoe
says recent research
has given us much deeper insights into the father’s role in childrearing.
It shows that fathers do things a little differently from mothers and that what
fathers do is
not only highly complementary to what mothers do but is important in its own right
for optimum childrearing. It also shows that fathers are far more than just “second
adults” in the home but bring positive benefits to their children that no
other person is as likely to bring. Fathers make important contributions to their
intellectual competence and psychological well-being. Nord, Brimhall and West say
that the involvement of fathers exerts a distinct and independent influence on
have ever repeated a grade, get mostly A grades, enjoy school, and participate
in extracurricular activities. In the Government’s 2005 consultation preceding
the Bill only 103 of the 505 responses backed removing the obligation to have regard
to the child’s
need for a father. More recently, a ComRes
telephone poll demonstrated that 77 per cent
of people think that the obligation on IVF clinics to have regard to the child’s
need for a father is either important or very important. This rose to 84 per cent
for the 18 to 24 year-olds.
There are close links between fatherless families
(or families without consistent male role models) and the following factors: children
living in poverty; children
poorer health; children subject to a higher risk of abuse; children subject to
a higher risk of offending, and poor school performance.
The great majority of people
in the debate accept that the research evidence strongly supports the view that children
in general—although not necessarily in all
individual cases—do much better in later life across a wide range of measures,
including education, employment and offending, when a father is involved. The Joint
Committee on the draft
Bill concluded that the balance of view on the committee was that it would be detrimental
to remove entirely the requirement to take into account the need for a father.
The Joint Committee also recognised that “In an area such as this, the
law has symbolic value”.
I think it does have symbolic value and some of the quotes that have been given
about public opinion reflect that view.
24 per cent of the nation’s children
are growing up in families without a live-in father. If the Government carelessly
give the impression in this Bill that
downgrading the importance of a committed father in the family, there will
certainly be more single-parent
families in the future than there are today. The press are watching this space,
and so are the public.
Many of the boys without an interested father with whom
I have worked have yearned for such a parent. Lone mothers speak to me about the
need of their sons for a
A lone mother—a teacher, who supports the education of children in children’s
homes with great success—told me how helpful it would be for her 12 year-old
son if his school could find a male physical education teacher, because he is growing
without a father. Time and again I have heard prison officers in the criminal justice
system describing themselves as the first father-figures for their young male inmates.
Only last week a 22 year-old man described to the All-Party Parliamentary Group
on Penal Affairs his long involvement with crime as a drug dealer. He described
lack of a
positive male role model when he was growing up on his estate and firmly identified
that as the root of his criminal behaviour. Important to his rehabilitation was
with a male drama teacher who inspired him to become an actor and an author.
What signal would we be sending to the public if we removed
the phrase “the need
for a father”? New laws send out clear and powerful messages. People will
conclude that Parliament now thinks that fathers are an optional extra. The public
is and will be that removing the phrase undermines the role of fathers.
was Education Secretary, one of our main concerns was the shortage of male teachers
in primary schools—a concern that remains. We knew that those children
needed male role models; in particular, children from broken or disadvantaged families
from a male role model. I am troubled by the extent to which I have seen, particularly
in education, the way in which boys in particular find themselves at a loss about
quite what their role in society is. We are seeing the demotivation of boys.
It is terribly
important that we restore to them their motivation, and fatherhood is one of the
key ways of doing that.
It seems to me that the Government, either by design or
well-meaning accident, are now busy deconstructing the meaning of fatherhood.
That is where incipient
could well be creeping in. By appearing to be a bit anti-father, and appearing
to fail to give proper respect to both sexes, the principle ultimately fails to
of esteem for parenting between the sexes. I simply cannot believe—as I predict
will be seen—that the country at large supports the removal of the need for
a father. That removal sends a clear signal to men that the Government ultimately
do not value
the unique role of fathers in a child’s life, let alone the message that
the Government wish to promote legislation that might turn out to be seen by later
Having Their Cake And Eating It
These are all excellent arguments for keeping the reference
to the need for a father. Unfortunately they were undermined by a fatal flaw. I foreshadowed
it in the first
paragraph above. Where does this “need” come in when two women are
the sole registered parents or a single IVF mother has no connection with the child’s
biological father? With massive illogicality, the peers who wanted to retain the
reference to the need for
a father also agreed that the state should continue to provide IVF treatment where
the sole “parents” are two women or there is only one parent and that
one is female. They were trying to have their cake and eat it.
The Government settled
for the parenting fallacy. The 1990 Act provision was amended to read:
A woman shall not be provided with treatment services unless
account has been taken of the welfare of any child who may be born as a result of the
need of that child for supportive parenting), and of any other child who may
be affected by the birth.
The amendment consisted of the removal of “a father”,
substituting for it “supportive
parenting”. It is not likely to be changed when the Bill reaches the Commons
*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. Footnotes give the name of the peer in question. So far
as practicable, I have kept to the original wording. To avoid a disjointed appearance
I have not indicated omissions.
I have underlined significant points.
3. Lord Mackay.
4. Lady Deech.
5. Lord Alton.
6. Shirley Williams.
7. Archbishop of York.
8. Bishop of Newcastle.
9. Lord Northbourne.
10. Lady O’Neill.
11. Lord Howe.
12. Lady Deech.
13. Lady O’Cathain.
14. Lord Patten.
15. Lord Warner.
16. Lord Northbourne.
17. Lord Listowel.
18. Lady O’Cathain.
19. Shirley Williams.
20. Lord Patten.