Laws of Eve: Family law in a changing world
As children, we knew a world in which it was safe to conclude that every child we knew had two parents - one male and one female; a father and a mother. That was because the processes involved in in-vitro fertilisation, sperm donation and embryo transplant were not features of our environment. Also less common were civil unions between homosexual couples, or same-sex marriages.
During the course of my research to identify interesting legal issues in the area of family law, my eyes have been opened to a new world in which the cases decided in other jurisdictions have awakened me to the possibility of new types of cases challenging family law norms.
For example, I now await with interest the outcome of Sherri Shepherd's appeal to the US Supreme Court from the decision that compels her to pay child support to care for the child born to a surrogate who was contracted by her and her then husband, just before the marriage fell apart, although she has no biological connection to the child.
In an equally interesting case decided last October, the London High Court ruled that a 14-year-old girl must have a relationship with her two fathers. The background to that decision is that the girl, who resides with her biological mother, who is in a civil partnership with another woman, was born as a result of donor insemination. Her biological father is in a civil partnership with another man. (The girl has a 10-year-old sister, who was conceived in the same manner and has the same fathers.)
The two sets of parents have been in a legal battle for years. Although the girls were old enough to state their preferences, and they both wanted nothing to do with their fathers, the court ruled in favour of the fathers. The reported reasons for the decision included the view that the fathers have something of real value to add to the girls' lives and that the lack of a meaningful relationship with their fathers created a significant void in their lives.
In yet another case decided in September 2015, the Family Division of the London High Court - In the matter of the Human Fertilisation and Embryology Act 2008 (Cases A, B, C, D, E, F, G and H) EWHC 2602 (Fam) - was faced with issues arising from the lack of adherence by fertility clinics to the complex legal procedure established for fertility treatment.
Essentially, the cases concerned declarations of parentage and the court had to decide whether "the legal status of all the parties finally and irrevocably crystallised at the moment the embryo or the sperm and eggs were placed in the mother, or the mother was artificially inseminated, and this treatment resulted in the birth of the child." In some cases, the couples were male and female, in others they were two women or two men.
The common thread among the cases was the fact that the fertility clinics were either unable to locate signed consent forms, had parents complete forms before starting treatment, or completed forms with errors or failed to complete parts of them. After the birth of the children, the clinics advised the parents that parentage could be disputed since an audit of fertility clinics showed that relevant regulations had been breached.
The names of the parents and children were not included in the judgment and the judge was careful not to recite any of the evidence that could cause relatives or friends of the parties to identify them. He said, "The evidence I listened to in these cases was some of the most powerful, the most moving and the most emotionally challenging I have ever heard as a judge. It told of enormous joy - both for the woman and her partner, to discover, in some cases after a hitherto unsuccessful journey lasting years, that she was pregnant, having taken a pregnancy test that they had scarcely dared to hope might be positive; the immense joy of living through the pregnancy of what both thought of from the outset as "their" child; the intense joy when "their" child was born.
In contrast, it told of the devastating emotions - the worry, the confusion, the anger, the misery, the uncertainty, the anguish, sometimes the utter despair - they felt when told that something was wrong with the parental consent forms. That after all they had been through - all the joy and happiness, W's partner might not legally be the parent."
Case G was put off until a later date. For all the other cases, the court declared parentage for the applicants. In order to make those findings, the court concluded that it had the power to (among other things):
• Accept oral evidence from the parties where the relevant consent form Ps were missing or were not properly completed before treatment began;
• Correct mistakes on the consent forms in appropriate cases;
• Determine that, although forms were not completed, accept another form as satisfying the statutory requirement for consent.
In Jamaica, we must face the reality that cases of these nature are likely to come before our courts, and that we should not wait for them to be filed before we enact legislation to address the needs of our changing world.