Fragmenting Fatherhood: The Regulation of Reproductive Technologies
| Published date | 01 July 2005 |
| Date | 01 July 2005 |
| DOI | http://doi.org/10.1111/j.1468-2230.2005.00550.x |
THE
MODERN LAW REVIEW
Volume 68 July 2005 No 4
Fragmenting Fatherhood:The Regulation of
ReproductiveTechnologies
Sally Sheldon
n
Reproductive technologies o¡er the potential to break down parenthood into a number of con-
stituent parts.These disruptive possibilities mean that the regulationof reproductive technologies
holds important potential forstudy, providing a signi¢cant resource that has been little analysed
with regard to fatherhood. This studyattempts to remedy that lacuna throughconsideration of a
range of recent developmentsin th is area of English law.It reaches twogeneral conclusions. First,
while the law regulating reproductive technologies attributes great importance to fatherhood,
this is rooted primarily (though not exclusively) in concerns for the symbolic importance of
fathers, ratherthan i n morepractical considerations such as ensuring ¢nancial provision or a sec-
ond hands-on carer for a child. Secondly, the Human Fertilisation and EmbryologyAct (1990)
contains a clear attempt to protect and entrench the role of the father as completingthe nuclear
family. However, recent developmentssuggest that this legal preference for the nuclear family is
subject to clear emerging cracks.
INTRODUCTION
An infertile married woman separates from her husband and decides, together
with a new malepartner, to undergo arti¢cial insemination using an embryo cre-
ated via the sperm of a donor. Before the embryo is implanted, her new relation-
ship breaks down and she begins an a¡air with a third man, with whom she
intermittently cohabits. Using the embryo and relying on the formal consents
supplied at the time it was created, she becomes pregnant.When her child is born
which,if any,of these men has a claim to be recognised as its father? And on what
values and intuitions should we draw in answering this question? More speci¢-
cally: what signi¢cance canwe attribute to the woman’s marital status; to the fact
of her (non) cohabitation; to her current relationship status; to the intention of
any one or more of these men to create a child or to act as a social father; to one
man’s genetic links with the child; and to the fact that the sperm was obtained
n
Law Department, Keele University. I am grateful both to my colleagues at Keele and to those who
welcomed me as a Parsons Visiting Fellow at Sydney Law School where this paper was completed. I
bene¢ted greatly fromthe opportunity to discuss it in both places. I am also indebted tothe following
for constructive and insightful feedback on earlier drafts of this paper: Belinda Ben nett, Davina
Cooper,Didi Herman, Derek Morgan, MichaelThomson, Aleardo Zanghellini and two anonymous
referees for the Modern Law Review. This paperdraws on research for a programme of work funded
by an ESRC fellowship, and I acknowledge that support with gratitude.
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(2005) 68(4) MLR 523^553
from an anonymous donor via a clinic? Should our answer be di¡erent if a man
with a claimto be recognised as the child’s fatherdies before the embryo is created
or implanted or before the child is born? And does it make any di¡erence if any
one of these putative fathersis a female to male transsexual, whose birthcerti¢cate
re£ects the fact that he was born a woman?
1
One thing well demonstrated by this scenario is the ability of reproductive
technologies (RTs) to confuse and disrupt our understandings of parenthood.
2
My starting point is that these disruptive possibilities endow the regulation of
RTs with an important potential for study that has not es caped the attention of
those who have taken them a s a focal point for thin king about motherhood,
3
but
which has received farless attention with regard to fatherhood. Notably, in deter-
mining who should enjoy the legal status, rights and responsibilities of parents in
complex reproductive situations, many values that might otherwise remain
unstated are necessarily rendered explicit and hence open to criticism, contesta-
tion and analysis. As one commentator has put it:
Modern reproductive techniques subdivide what was previously unitary. Various
stages of the biological process can now be severed, allowing speci¢c impaired
aspects of the procreative process to be replaced byworkable substitutes. As a result
more than two persons can now be biologically involved in a given instance of
reproduction. Furthermore, because processes that previously were bundled can
now be separated, procreation can be depersonalized: biological reproduction can
be separated from the social and physical context of interpersonal intimacy.When-
ever subdivisionoccurs, choices emerge. Developments in reproductivetechnology
have created new biological and social options that in turn challenge old assump-
tions and pose new dilemmas for legal doctrine and policy.
4
Where‘choices emerge’ in thelegal arena, theyare typically accompanied bypub-
lished deliberations such as the documentation surrounding public consultations,
green and white papers, parliamentarydebates, statutes and court judgments. As
such, the legal regulation of RTs emerges as an extremely signi¢cant resource
through which we can trace the values and assumptions which underpin our
views regarding fathers and their role within the family. Such is the task of the
present study. I believe it timely for three reasons.
transsexuals to be recognised as fathers in some circumstances.This had been previously impos-
sible in the UK, see: X, Yan d Z vUK (1997) 24 EHHR 143.
2 Further complicationswould arise from the possibilities o¡ered by cloning,nuclear transfer, and
techniques which aggregateconceptuses into a single conceptus capable of developingi nto ach i-
maera see M. Johnson,‘A Biomedical Perspective on Fatherhood’, in A. Bainham, S. Day Sclater
and M. Richards (eds),What is a Parent? ASoc io-Legal Analysis (Oxford:Hart, 1999) 52.
3 For some earlyworks, see M. Stanworth,‘ReproductiveTechnologies and the Deconstruction of
Motherhood’ in M. Stanworth (ed), Reproductive Technologies: Gender, Motherhood a nd Medicine
(Cambridge:Polity,1987); R. Arditti,R. Duelli K lein and S.Mi nden (eds),Test-TubeWomen:What
FutureforMotherhood?(London, Boston: PandoraPress, 1984);B. Katz Rothman,RecreatingMother-
hood:Ideologya ndTechnologyin a PatriarchalSociety (NewYork:Norton & Co,1990).
4 M. M. Shultz, ‘Reproductive Technology and Intent-Based Parenthood: An Opportunity for
Gender Neutrality’ [1990] Wisconsin Law Review297, 299^300.
Fragmenting Fatherhood
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