Gay and Lesbian Collaborative Co-Parenting in New Zealand and the United Kingdom: ‘The Law Doesn’t Protect the Third Parent’
| Date | 01 August 2020 |
| Published date | 01 August 2020 |
| DOI | 10.1177/0964663919874861 |
| Subject Matter | Articles |
Article
Gay and Lesbian
Collaborative
Co-Parenting in
New Zealand
and the United Kingdom:
‘The Law Doesn’t Protect
the Third Parent’
Nicola Surtees
University of Canterbury, New Zealand
Philip Bremner
University of Sussex, UK
Abstract
In manyjurisdictions, legislationreflects, retainsand reiterates heteronormative two-parent
models of family. Lesbian and gay individuals and an increasing number of heterosexual
individuals whochoose to parent outside the paradigm of the conjugal couple relationship
find neither theirinterests nor the welfare of theirchildren is sufficiently protected in law.
This article is based on the findings of two empirical research projects investigating the
procreativeautonomy of lesbians and gay men in New Zealandand the United Kingdom. It
focuses on collaborative co-parenting familiesformed by lesbian couples and gaymen, with
referenceto the allocation of legalparenthood in these kinds offamilies and case law across
both jurisdictions. Two suchfamilies are introduced.Attention is drawn to theways the law
hampers these families’ preferred parenting arrangements. The article highlights the need
for legislativechange. It concludesthat a more flexible, inclusiveconcept of legal parenthood
that honours the intentions of those involved in these arrangements would potentially
benefit all people interested in non-traditional parenting.
Corresponding author:
Nicola Surtees, School of Educational Studies and Leadership, University of Canterbury, Private Bag 4800,
Christchurch 8140, New Zealand.
Email: nicola.surtees@canterbury.ac.nz
Social & Legal Studies
2020, Vol. 29(4) 507–526
ªThe Author(s) 2019
Article reuse guidelines:
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DOI: 10.1177/0964663919874861
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Keywords
Assisted reproduction, collaborative co-parenting, family law, same-sex parents
Introduction
The increasing number of planned families formed through the use of assisted reproduction
technologies requires an expanded concept of family to reflect the reality of the myriad
forms that exist, and to ensure that children’s interests are adequately protected ...Assisted
reproduction is used by heterosexual couples experiencing infertility, including those who
are concerned about genetic issues or are unable to carry a fetus to term, and by lesbian
couples, gay male couples, persons intending to become single parents and persons intend-
ing to form families with more than two parents. They may use anonymous or known donor
sperm, ova or embryos, or some combination of donor genetic material and surrogacy. The
families that result are varied and diverse, and each has a unique and distinct network of
social and extended family relationships
Manitoba Law Reform Commission (2014)
In New Zealand and the United Kingdom, gay and lesbian collaborative co-parenting
arrangements are part of the variety and diversity referred to in the quote above. Bremner
(2017) defines collaborative co-parenting as ‘reproductive collaborations’ between gay
men and lesbians that are characterized by the intention of each of the adults (often more
than two) to play some sort of parental role in the child’s life. The New Zealand Law
Commission’s (2005) report, New Issues in Legal Parenthood, recommended amending
existing law to allow for the recognition of three legal parents where a lesbian couple and
the biological father conceive and raise a child together. This recommendation, while not
acted on in New Zealand, was referenced in the lead up to the 2013 British Columbia
Family Law Act, which legislated for the possibility of three legal parents. Meanwhile in
the United Kingdom, although this issue has not been addressed legislatively, there have
been various judicial attempts to afford some recognition to gay and lesbian families
where there are multiple parents (for a useful summary of cases in England and Wales,
see Smith, 2013). However, the courts do not have the discretion to recognize multiple
legal parents. Therefore, judges adopt a less-than-satisfactory approach of using parental
responsibility as discussed below (see also Harris and George, 2010), which falls short of
legal parenthood.
This article is based on two empirical research projects focused on gay and lesbian
families that were conducted separately by one author in New Zealand and the other
author in the United Kingdom. We draw on these projects, which are described later in
the article, to argue for a more inclusive approach to the recognition of legal parenthood
in these jurisdictions. Rather than attempting to channel families into a particular model
of parenthood, we advocate for a legal framework that adequately recognizes and values
family diversity. By discussing the stories of two collaborative co-parenting families
(one in the United Kingdom and one in New Zealand), we highlight how family laws in
both jurisdictions fail adequately to accommodate the needs of collaborative
508 Social & Legal Studies 29(4)
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