LCF seminar on HTE Bill
Implications for the Family
NOV 5th 2007
The title of the Bill fails to reveal the fact, but I am not exaggerating when I say that its provisions seek to redefine the nuclear family. As such they represent a challenge at the deepest level to God’s creation order and design. Consequently, I think this is something that, as Christian Lawyers, we should be very concerned about. I want to give you an overview of these provisions and explain their implications as I see them.
The first area of concern is in part 2 of the Bill, clause 21. This provision proposes to remove the requirement that the need of any child that may be born as a result of assisted reproduction “for a father” be considered in deciding whether or not to provide treatment to a woman.
This current legal requirement is found in Human Fertilisation and Embryology Act 1990, the legislation which regulates the provision of assisted reproduction services in clinics. So when a woman attends an IVF clinic and requests treatment, by law the clinician is obliged to consider whether or not she meets certain requirements before treatment is provided. It is proposed that the general duty to take the welfare of the child into account will remain, but that there will no longer be a specific requirement that the need for a father be considered.
The amount of weight currently given to this provision by the clinics is questionable, but there is evidence that they do take their obligation to identify a potential male role model in the wider family seriously when considering giving treatment to single women. As such it seems that the clause is of value in practice as well as in terms of the underlying principle it upholds. In my view the removal of the clause will send the message from government that it does not value fatherhood and that fathers are entirely dispensable and not needed by children.
The Joint Committee on the Bill recommended in its report that this proposal be put to a free vote of both Houses of Parliament. But it was their recommendation that rather than removing the requirement entirely it should be retained but amended to make clear that it is capable of being interpreted as the “need for a second parent (of either sex)” in line with the parenthood provisions found later in the Bill.
The Government’s view on this is that research in this area tends to show that the factor of prime importance is quality of parenting rather than parental gender. As such they take the view that the general duty to take account of the welfare of the child is adequate. In forming their view the Government also specifically took account of the House of Commons Science and Technology Committee’s view, in its 2005 report, that:
“The requirement to consider whether a child born as a result of assisted reproduction needs a father is too open to interpretation and unjustifiably offensive to many. It is wrong to imply that unjustified discrimination against ‘unconventional families’ is acceptable.”
So the desire to avoid discrimination against “unconventional families” and causing “offence” is to be the guiding principle. And of course no promise of a free vote.
Once this provision is subsumed into the general duty to take account of the welfare of the child its significance will be entirely dependent on the way that provision is interpreted by the Human Fertilisation and Embryology Authority in the future, with no safeguard whatsoever.
So what evidence is there that fathers are important figures in the lives of children? Is the Government correct that what matters is the quality of parenting and not the gender?
The Government’s most recent official research into marriage and the family, the Focus on Families survey published in October this year by the Office of National Statistics, concluded that marriage beats all other living arrangements in terms of its benefits to adults and children. Regardless of economic background, children living with their married parents were the healthiest and stayed longer in the education system.
Furthermore there is a broad range of evidence indicating that the role of the father is of great significance to a child’s welfare, playing a unique role complementary to that of the mother. Children who live apart from their father or who have no contact with a father have worse outcomes in childhood and adulthood across a range of indices. The clear evidence for this is contained in the Government’s own consultation document. Father-absence is also linked with early sexual experience and teenage pregnancy even after control for other factors.1 Some studies suggest that father love is as influential upon the development of a child as mother love.2
Robust evidence given to the Joint Committee on the Bill included that of Professor Ann Buchanan, Director of the Oxford Centre for Research into Parenting and Children, who told them that that from her research, "the evidence for the role of fathers is important" and "is strongly related to children's later educational attainment. Children with involved fathers are less likely to be in trouble with the police. Father involvement is associated with good parent-child relationships in adolescence. Father involvement protects against adult experiences of welfare and later mental health problems and it applies in different ways to both girls and boys" (Report volume 1, para 231).
I should say at this point that these arguments in no way demean the obvious efforts and achievements of the very many successful one-parent families where force of circumstances has resulted in only one parent, nor does it imply that same-sex couples cannot give the child a lot of love.
That said, no attempt has been made in the documents accompanying the Draft Bill to show how removing the requirement to consider a child’s need for a father will be of benefit to the children born as a result of assisted reproduction. The Committee seemed to favour arguments such as those put forward by the same witness, Professor Ann Buchanan later on in her evidence:
"if there was one intervention which would increase the well-being of children, it should be that children should be wanted and planned for" and "in civil partnerships it may be possible to compensate for the need to have some male presence in the children's lives”. It was also strongly argued that it was not the absence of a father per se that led to worse outcomes for these children, but the circumstance of being a one-parent family such as economic factors and the involvement of step-parents.
My overall impression is that these proposals are driven not by a desire to ensure the welfare of the child but by a desire not to cause offence to the adults involved, and to give them what they want.
A little bit of background into the law is required here to fully understand the implications of the proposal to remove the requirement that the child’s need for a father be considered in the assisted reproduction process.
The 1990 Act (which currently governs the area of assisted reproduction) provides that “A woman should not be provided with (reproductive) treatment services unless account has been taken of the welfare of [the] child (including the need of that child for a father), and of any other child who may be affected by the birth.” The regulator is required to provide guidance about the meaning of these provisions.
The guidance they have provided has been seriously eroded since 1990. By November 2005 the burden of proof in the guidelines had shifted to “a presumption to provide treatment, unless there is evidence that any child born to an individual or couple, or any existing child of their family, would face a risk of serious harm”.
Figures published on the HFEA website recently demonstrated that treatment is now regularly being provided to lesbian and single women under these guidelines. This has been made possible because the definition of “treatment services” under sn 2 1990 Act was wide-ranging (“medical, surgical or obstetric services provided to the public or a section of the public for the purpose of assisting women to carry children”) and was not limited to situations where there was a “clinical need” for infertility treatment.
In my view, the needs of the children being brought into the world by techniques in assisted reproduction, which one would expect to be considered paramount as in every other area of the law governing children, are not being adequately taken into account. They are not being given the weight the 1990 Act required. This has all happened without recourse to Parliament. The current proposals will make the situation worse. They will also go further by sanctioning by law of the creation of what I will call “two mother families”.
This moves me on to the extraordinary provisions of Part 3 of the Bill. This seeks to fundamentally redefine society’s understanding of the family. It seeks to treat civil partners and other single-sex couples in the same way as heterosexual ones by enabling them to legally become procreative units. This is despite the fact that the government has always maintained that civil partnership is not gay marriage, but rather a civil vehicle to enable single-sex couples to pursue their chosen life-style in line with their sexual orientation.
The Bill explicitly provides for “two mother” families by enabling a second woman to be legally named as a child’s “second parent”. These can be created in two ways:
Where a women is artificially inseminated with donor sperm, and her
civil partner has not demonstrated lack of consent to this, she will become the other parent and both will automatically have parental responsibility for the child (clause 48);
Where a women who is not married or in a civil partnership is artificially
inseminated with donor sperm during the course of UK licensed treatment and another women formally agrees (by notice) to be treated as the other parent, and the mother agrees to this (also by notice) and neither gives notice of withdrawal of consent nor does the mother given a further notice agreeing to a further woman being treated as the child’s parent (clause 49).
These children will have a “mother” and “a second parent” who is also a woman on their birth certificate. The provisions of the Bill state that in these circumstances “no man is to be treated as the father of [the child]” (clause 51(1). It is, of course, possible for neither woman to be genetically related to the child (if donor gametes are used), and inevitable that one of the women will not be.
Implicitly the Bill also seems to provide for “two father” families. However there is a concerning lack of transparency in the Bill about this issue. I cynically wonder if this is because it might be seen as particularly controversial. Clause 60 extends the categories of couples who can apply for parental orders (fast track adoption orders) where a child has been conceived using the genetic material of one of the couple and carried by a surrogate mother. However there is no requirement that the surrogacy arrangement be entered into in a licensed clinic.
Under the 1990 Act these orders were only available to married couples. The Bill would allow married couples, civil partners and other “persons who are living as partners in an enduring family relationship, and are not within prohibited degrees of relationship to each other (clause 60(2)(c)” to apply under the new provisions. It seems that two men who have conceived a child using the sperm of one of them and a surrogate mother will be able to take advantage of these provisions to achieve fast track adoption, thus creating “two father families”.
Many Christians believe that the idea of single-sex couples as pro-creative units runs completely contrary to God’s creation design for men and women. In Genesis 2 we read about God’s creation of man and woman and their perfect complementarity. We read about the first marriage in Genesis 2:24:
“For this reason a man will leave his father and mother and be united to his wife and they will become one flesh”
From a purely secular perspective there are compelling reasons, particularly with homosexual men, to consider these steps to be unwise.
The first reason is that lifelong quasi-marital fidelity in homosexual partnerships is largely a myth. It is established fact that these relationships are characterised by promiscuity and not fidelity. The National Gay Man’s Sex Survey 2001, a large UK study of over 14,600 respondents, found that 73% of gay men surveyed had more than one sexual partner in the last year, compared to 30% of heterosexual men. It is a fact that lifelong faithfulness is almost non-existent in the homosexual experience. SIGMA – a leading research organisation examining homosexual practice and AIDS – has said that “Non-exclusive relationships are, for many men, simply more fulfilling than monogamous ones”.
The second reason is the reduced life-expectancy and likelihood of ill-health associated with gay sex practices. Practising homosexual men are vulnerable to all kinds of STDs including AIDS, as well as hepatitis, rectal cancer, non-viral and viral infections. Promiscuity and the practices they favour make these risks much greater than in the heterosexual community. These risks are associated with a significant decrease in life-expectancy – some estimate up to 20 years.
The third reason is the hostility of many within the homosexual community itself to parents and their children3.
The provisions of part 4 of the Bill will further facilitate the creation of “two father” families.
Clause 66 will facilitate the entering into of surrogacy arrangements by allowing not-for-profit bodies to receive payment both for initiating negotiations with a view to the making of a surrogacy arrangement, and for enabling interested parties to meet one another. It will also allow them to advertise in order to bring parties together with a view to forming surrogacy arrangements. All these activities were previously illegal. This liberalisation of the surrogacy laws will make surrogacy arrangements outside the immediate family and social circle of gay men much easier than it was before.
The onus will be on all children born by donor to apply to the authority at the age of 18 to seek to ascertain their biological origins. However there is no obligation upon mother/father families to disclose the fact of donation to the child. Self-evidently this will not be an issue in the 2 mother and 2 father families where the biological facts will speak for themselves! This new law will come into place in the context of guidelines to the clinics on providing assisted reproduction services that indicate “a presumption that treatment will be provided to those who seek it”.
Taken together these provisions replace the family as an essentially biological unit with a socio-legal construct. The proposed legislative structure will enable the rights of the adults concerned to entirely overwhelm those of the children who will be brought into the world as a result of assisted reproduction. It amounts to a massive social experiment because there is an absence of information on the long-term implications of children being brought up in single-sex households.
According to one of the largest studies, the children of homosexual parents often suffer from gender confusion and relationship problems.4 Similarly another study has found that the children of homosexual parents tend to have difficulty at school and in social situations.5
Dr Dean Byrd, Vice President and standing psychologist to NARTH; the National Association for Research and Therapy of Homosexuality, gave evidence in the case of Andrew McClintock of research indicating poor outcomes for children raised in same-sex households. NARTH is the foremost research body in the United States and probably internationally, on the subject matter of medical and societal study of homosexuality. You can read his evidence on the LCF website:
http://www.lawcf.org/index.asp?page=Evidence+of+damage+to+children+raised+in+same-sex+households
Even if legislators do not find any of this evidence persuasive, surely it would be wise to wait until there is clear evidence of good outcomes for children in this situation before society sanctions it.
Finally I must mention abortion because the laws are being reviewed as part of the legislative changes proposed by the Human Tissue Bill. The Science and Technology Committee have just reported on abortion. They came to the conclusion that:
There is no scientific basis to reduce the 24 week upper limit for abortion.
The requirement for two doctors’ signatures before an abortion can be carried out should be removed.
Nurses and midwives should be allowed to carry out early abortions.
An exhaustive list of abnormalities on what constitutes “serious handicap” (which is used as a reason for aborting foetuses after 24 weeks) is not feasible, but that guidance on the meaning would be helpful.
Foetal pain is not relevant to the question of abortion law.
A minority Report (contained in the Committee’s report at page 71) was proposed by Nadine Dorries and seconded by Bob Spink, and essentially rejects the committee's findings. The minority report also highlights the misgivings on the oral evidence selection process. Of the 18 witnesses chosen to give evidence before the Committee, 13 were pro-abortion and only 5 pro-life.
In terms of the stage in the Parliamentary process that the Bill has reached, it has been considered by a joint committee of both Houses and the government have responded to their report. We are expecting the Bill to be announced in the Queen’s speech this week and to have a relatively short passage through Parliament.
So if you feel strongly about this issue what action can you take? I would ask you to pray about this issue and also to contact your own MP with your concerns. Please also consider writing to Dawn Primarolo MP, Minister for Public Health at House of Commons, Westminster, London, SW1A 0AA. If you are not a lawyer please join the mailing list of Christian Concern for our Nation which will keep you up to date on this and other issues (www.ccfon.org).
Rebecca Bensted
Lawyers’ Christian Fellowship
5 Nov 2007
1 Ellis, B.J et al, ‘Does Father Absence Place Daughters at Special Risk for Early Sexual Activity and Teenage Pregnancy?’, Child Development Vol 74 No.3 May/June 2003, pages 801-821
2 Rohner, R P and Veneziano, R, ‘The Importance of Father Love: History and Contemporary Evidence’, Review of General Psychology Vol 5(4), 2001, pages 382-405
3 Lott-Whitehead, L and Tully, C T, ‘The Family Lives of Lesbian Mothers’, in Laird J (Ed.) Lesbians
and Lesbian Families, Columbia University Press, New York, 1999, pages 251-5
4 Belcastro, P A et al, ‘A Review of Data Based Studies Addressing the Affects of Homosexual Parenting on Children’s Sexual and Social Functioning’, Journal of Divorce and Remarriage, 20(1/2), 1993, pages 111-112; Wyers, N L, ‘Homosexuality in the Family: Lesbian and Gay Spouses’, Social Work, 32(2), 1987, page 146
5 Sarantakos, S, ‘Children in Three Contexts: Family, Education and Social Development’, Children Australia, 21(3), 1996, page 25
