Genetics, Fathers and Families: Exploring the Implications of Changing the Law in Favour of Identifying Sperm Donors
| DOI | 10.1177/0964663906069543 |
| Published date | 01 December 2006 |
| Date | 01 December 2006 |
| Author | Catherine Donovan |
| Subject Matter | Articles |
GENETICS, FATHERS AND
FAMILIES: EXPLORING THE
IMPLICATIONS OF CHANGING
THE LAW IN FAVOUR OF
IDENTIFYING SPERM DONORS
CATHERINE DONOVAN
University of Sunderland, UK
ABSTRACT
In April 2005 amendments to the Human Fertilisation and Embryology Act 1990
allowed adult children of gamete donors access to identifying information about their
donor. Focusing on sperm donation as the most often used donated gamete in Britain,
this article concentrates on the original decision in the legislation to secure donor
anonymity in order to highlight the ways in which societal trends have shifted in
favour of the importance of genetic fathers. This will involve discussing how anom-
alous this decision was in comparison to changes elsewhere in family law where
genetic fathers – and genetic kin relationships – were being given increasing priority
in regulating families living outside the heteronormative, married, nuclear family. The
author discusses the impact of the new genetics in providing a rationale for the
increasing emphasis placed on knowledge of genetic fatherhood for the ontological
security of individuals, their well-being and identity. The article ends with a
discussion of some of the implications for families living outside the heteronormative
ideal of the increasing prioritization given to genetic fathers.
KEY WORDS
1990 Act; donor insemination; genetic fathers; new genetics
SOCIAL & LEGAL STUDIES Copyright © 2006 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 15(4), 494–510
DOI: 10.1177/0964663906069543
DONOVAN: CHANGING THE LAW ABOUT SPERM DONORS
495
INTRODUCTION
FROM APRIL 2005 children born as a result of gamete (sperm, eggs)
donation are now given the right, when they reach the age of 18, to
obtain identifiable information about their donor. This change to the
Human Fertilisation and Embryology Act 1990 (henceforth, the 1990 Act)
marks a further shift in the changing story about what constitutes family and
normative family practices (Morgan, 1999) in Britain as we enter the 21st
century. Family and intimate life emerged as some of the key political
concerns in the closing decades of the 20th century and one outcome of this
has been the prioritization genetic fatherhood has attained in the reconcep-
tualization of family and the welfare of children. These changes can be read
as attempts to impose a regulatory framework on the apparent social chaos
resulting from changes in the ways adults become parents and conduct their
intimate lives in Britain. In charting the changes to the 1990 Act it is possible
to detect a shift away from regulating family life on the basis of the adult
relationship towards a focus on the (genetic) relationships that exist between
fathers and children. That this framework is more explicitly applied to
families and parental relationships existing outside the heteronormative ideal
only serves to reinforce the continued assumed importance of that ideal.
The article is divided into five sections. In the first I will give a brief
overview of the British debates about family life in the closing decades of the
last century. This will provide some context for the 1990 Act and discuss how,
through focusing on key pieces of family law, genetic fatherhood and the
welfare of children became key strands in the reformulation of family
relationships, rights and responsibilities. In the second section I will give a
brief history of donor insemination (DI) and discuss the anxieties that have
surrounded its use, including those in relation to the genetic origins of those
conceived as a result of its use. In the third section I will discuss the 1990 Act
and the framework it provided for the regulation of assisted conception tech-
niques (ACTs), including the original decision to keep donor anonymity. In
this section I will use Douglas (1966) to discuss the 1990 Act decisions as
ways of achieving social order by reproducing heteronormative families. In
the fourth section I will discuss the new genetics and its impact on under-
standings of genetic capital and individual identity. Finally, I will discuss
some of the implications of these developments for the doing of family life
in the 21st century.
DEBATES ABOUT FAMILY AND CHANGES IN FAMILY LAW
In the last two decades, in Britain, there has been an ongoing debate about
whether there is a need to rescue what politicians (cross-party), many parts
of the media, religious leaders, and think tanks on the right and left (what
Fox Harding (1999) collectively calls the ‘family values’ lobby) have seen as
being in fatal decline: the married, heterosexual, nuclear family consisting of
496
SOCIAL & LEGAL STUDIES 15(4)
a wife/mother and husband/father, sharing a residence, and bringing up their
genetically related children together. In these debates other kinds of families
are problematized or demonized: heterosexual step-families or reconstituted
families, adoptive families and those resulting from ACTs fall mainly into the
former category while single parent and lesbian and gay families fall into the
latter. Centre of concern are the perceived consequences for children, families
and society of the increasing numbers of heterosexual families without
fathers (Dennis and Erdos, 1993; Murray 1996a, 1996b; Warnock, 2002), or
in relation to the arrangements for parenting post-divorce (Smart and Neale,
1999). These consequences are understood to include fundamental gaps in
the provision of life skills, values, heteronormative behaviours and gender
roles, morals and manners. Children are believed to be at risk of under-
achieving educationally, socially and in employment; they are also believed
to be at risk in terms of their mental health and of becoming delinquent and
criminal; and there is concern about the impact such families have on the
communities in which they live (see Lister, 1996). The very existence of
heterosexual nuclear families is believed by many to be coterminous with a
well-ordered, well-behaved, well-disciplined society. Without the hetero-
sexual nuclear family to perform the function of inculcating normative
behaviours and values into its members, society is understood to be in danger
of sinking into a social and moral morass (Lister, 1996).
During the late 1980s and early 1990s the Conservative governments of
Thatcher and Major extolled the importance of heterosexual nuclear families
for their economic vision. Fox Harding (1999) argues that in several ways
these governments did not always agree with the concerns of the family
values lobby where there were contradictions with the new right economic
philosophy of free market capitalism. Nevertheless, a move away from
collective, state provision of welfare towards a privatization of personal lives
allowed (at least in theory) many opportunities to roll back the role of the
state in the provision of welfare benefits and services. The stimulation of
markets in private health, education, pensions, housing and insurance all
coincided with the Conservative governments’ presentation of themselves as
the Party of the (heteronormative) Family. However, there were some
persistent obstacles to achieving these goals and among these were the
increasing number of single mothers (resulting from separation, divorce and
unprotected sex); the number of divorcing couples, many of whom were
remarrying or cohabiting to create reconstituted families; and the visibility
and confidence of lesbians and gay men who wanted recognition of their
family and parental relationships, desires and responsibilities.
The centrality of heterosexuality to family life can be illustrated by what
came to be known as Section 28 in which alternatives to heterosexual nuclear
family life were constructed as deviant and ‘other’. Section 28 made it illegal
for local authorities to promote homosexuality and for schools to promote
homosexuality as ‘pretended’ family relationships (O’Donnell, 1999). Later,
in the debates leading up to the introduction of child support legislation,
single mothers were castigated by Thatcher in a speech comparing the
DONOVAN: CHANGING THE LAW ABOUT SPERM DONORS
497
experiences of children being brought up in these families with those brought
up in ‘real’ heterosexual nuclear families (Brindle and White, 1990). The
response to single parents, particularly those resulting from never-married
women (the ‘illegitimacy’ problem of Murray, 1996a), is an example of the
way that the new right economics and family morality were able to coincide
in family policy (Millar, 1999). Chasing absent parents (overwhelmingly
fathers) to provide financially for their children facilitated moral messages to
be relayed: parenthood is for life and fathers’ key role is as provider for their
children. It also reflected an economic message: individuals (fathers), not the
state, are financially responsible for their own children. Making fathers pay
would (in theory at least) mean that the state could cut back on expenditure
thus achieving the economic goal of reducing the role of the state in provid-
ing welfare.
These were not the only pieces of family law that sought to reinforce the
centrality of heterosexual, nuclear family life and first families to the welfare
of children. Fox Harding (1999: 127) argues that the Child Support Act 1990,
the Children Act 1989, the Criminal Justice Act 1991 and the Criminal Justice
and Public Order Act 1994 all promoted parental responsibilities as
‘binding’, ‘determined by biology’ and involving ‘serious liabilities’. These
pieces of legislation, she argues, were intended to provide...
FAMILIES: EXPLORING THE
IMPLICATIONS OF CHANGING
THE LAW IN FAVOUR OF
IDENTIFYING SPERM DONORS
CATHERINE DONOVAN
University of Sunderland, UK
ABSTRACT
In April 2005 amendments to the Human Fertilisation and Embryology Act 1990
allowed adult children of gamete donors access to identifying information about their
donor. Focusing on sperm donation as the most often used donated gamete in Britain,
this article concentrates on the original decision in the legislation to secure donor
anonymity in order to highlight the ways in which societal trends have shifted in
favour of the importance of genetic fathers. This will involve discussing how anom-
alous this decision was in comparison to changes elsewhere in family law where
genetic fathers – and genetic kin relationships – were being given increasing priority
in regulating families living outside the heteronormative, married, nuclear family. The
author discusses the impact of the new genetics in providing a rationale for the
increasing emphasis placed on knowledge of genetic fatherhood for the ontological
security of individuals, their well-being and identity. The article ends with a
discussion of some of the implications for families living outside the heteronormative
ideal of the increasing prioritization given to genetic fathers.
KEY WORDS
1990 Act; donor insemination; genetic fathers; new genetics
SOCIAL & LEGAL STUDIES Copyright © 2006 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 15(4), 494–510
DOI: 10.1177/0964663906069543
DONOVAN: CHANGING THE LAW ABOUT SPERM DONORS
495
INTRODUCTION
FROM APRIL 2005 children born as a result of gamete (sperm, eggs)
donation are now given the right, when they reach the age of 18, to
obtain identifiable information about their donor. This change to the
Human Fertilisation and Embryology Act 1990 (henceforth, the 1990 Act)
marks a further shift in the changing story about what constitutes family and
normative family practices (Morgan, 1999) in Britain as we enter the 21st
century. Family and intimate life emerged as some of the key political
concerns in the closing decades of the 20th century and one outcome of this
has been the prioritization genetic fatherhood has attained in the reconcep-
tualization of family and the welfare of children. These changes can be read
as attempts to impose a regulatory framework on the apparent social chaos
resulting from changes in the ways adults become parents and conduct their
intimate lives in Britain. In charting the changes to the 1990 Act it is possible
to detect a shift away from regulating family life on the basis of the adult
relationship towards a focus on the (genetic) relationships that exist between
fathers and children. That this framework is more explicitly applied to
families and parental relationships existing outside the heteronormative ideal
only serves to reinforce the continued assumed importance of that ideal.
The article is divided into five sections. In the first I will give a brief
overview of the British debates about family life in the closing decades of the
last century. This will provide some context for the 1990 Act and discuss how,
through focusing on key pieces of family law, genetic fatherhood and the
welfare of children became key strands in the reformulation of family
relationships, rights and responsibilities. In the second section I will give a
brief history of donor insemination (DI) and discuss the anxieties that have
surrounded its use, including those in relation to the genetic origins of those
conceived as a result of its use. In the third section I will discuss the 1990 Act
and the framework it provided for the regulation of assisted conception tech-
niques (ACTs), including the original decision to keep donor anonymity. In
this section I will use Douglas (1966) to discuss the 1990 Act decisions as
ways of achieving social order by reproducing heteronormative families. In
the fourth section I will discuss the new genetics and its impact on under-
standings of genetic capital and individual identity. Finally, I will discuss
some of the implications of these developments for the doing of family life
in the 21st century.
DEBATES ABOUT FAMILY AND CHANGES IN FAMILY LAW
In the last two decades, in Britain, there has been an ongoing debate about
whether there is a need to rescue what politicians (cross-party), many parts
of the media, religious leaders, and think tanks on the right and left (what
Fox Harding (1999) collectively calls the ‘family values’ lobby) have seen as
being in fatal decline: the married, heterosexual, nuclear family consisting of
496
SOCIAL & LEGAL STUDIES 15(4)
a wife/mother and husband/father, sharing a residence, and bringing up their
genetically related children together. In these debates other kinds of families
are problematized or demonized: heterosexual step-families or reconstituted
families, adoptive families and those resulting from ACTs fall mainly into the
former category while single parent and lesbian and gay families fall into the
latter. Centre of concern are the perceived consequences for children, families
and society of the increasing numbers of heterosexual families without
fathers (Dennis and Erdos, 1993; Murray 1996a, 1996b; Warnock, 2002), or
in relation to the arrangements for parenting post-divorce (Smart and Neale,
1999). These consequences are understood to include fundamental gaps in
the provision of life skills, values, heteronormative behaviours and gender
roles, morals and manners. Children are believed to be at risk of under-
achieving educationally, socially and in employment; they are also believed
to be at risk in terms of their mental health and of becoming delinquent and
criminal; and there is concern about the impact such families have on the
communities in which they live (see Lister, 1996). The very existence of
heterosexual nuclear families is believed by many to be coterminous with a
well-ordered, well-behaved, well-disciplined society. Without the hetero-
sexual nuclear family to perform the function of inculcating normative
behaviours and values into its members, society is understood to be in danger
of sinking into a social and moral morass (Lister, 1996).
During the late 1980s and early 1990s the Conservative governments of
Thatcher and Major extolled the importance of heterosexual nuclear families
for their economic vision. Fox Harding (1999) argues that in several ways
these governments did not always agree with the concerns of the family
values lobby where there were contradictions with the new right economic
philosophy of free market capitalism. Nevertheless, a move away from
collective, state provision of welfare towards a privatization of personal lives
allowed (at least in theory) many opportunities to roll back the role of the
state in the provision of welfare benefits and services. The stimulation of
markets in private health, education, pensions, housing and insurance all
coincided with the Conservative governments’ presentation of themselves as
the Party of the (heteronormative) Family. However, there were some
persistent obstacles to achieving these goals and among these were the
increasing number of single mothers (resulting from separation, divorce and
unprotected sex); the number of divorcing couples, many of whom were
remarrying or cohabiting to create reconstituted families; and the visibility
and confidence of lesbians and gay men who wanted recognition of their
family and parental relationships, desires and responsibilities.
The centrality of heterosexuality to family life can be illustrated by what
came to be known as Section 28 in which alternatives to heterosexual nuclear
family life were constructed as deviant and ‘other’. Section 28 made it illegal
for local authorities to promote homosexuality and for schools to promote
homosexuality as ‘pretended’ family relationships (O’Donnell, 1999). Later,
in the debates leading up to the introduction of child support legislation,
single mothers were castigated by Thatcher in a speech comparing the
DONOVAN: CHANGING THE LAW ABOUT SPERM DONORS
497
experiences of children being brought up in these families with those brought
up in ‘real’ heterosexual nuclear families (Brindle and White, 1990). The
response to single parents, particularly those resulting from never-married
women (the ‘illegitimacy’ problem of Murray, 1996a), is an example of the
way that the new right economics and family morality were able to coincide
in family policy (Millar, 1999). Chasing absent parents (overwhelmingly
fathers) to provide financially for their children facilitated moral messages to
be relayed: parenthood is for life and fathers’ key role is as provider for their
children. It also reflected an economic message: individuals (fathers), not the
state, are financially responsible for their own children. Making fathers pay
would (in theory at least) mean that the state could cut back on expenditure
thus achieving the economic goal of reducing the role of the state in provid-
ing welfare.
These were not the only pieces of family law that sought to reinforce the
centrality of heterosexual, nuclear family life and first families to the welfare
of children. Fox Harding (1999: 127) argues that the Child Support Act 1990,
the Children Act 1989, the Criminal Justice Act 1991 and the Criminal Justice
and Public Order Act 1994 all promoted parental responsibilities as
‘binding’, ‘determined by biology’ and involving ‘serious liabilities’. These
pieces of legislation, she argues, were intended to provide...
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