Legally Fatherless, That’s Outrageous

Published in the Courier Mail, 20 Dec 07

I am not a morning person. Therefore, I am unlikely to pay much attention to what is being screened if my husband flicks on a morning television show. But every so often, something is said which pierces through the morning fog quicker than a strong espresso.

Last week, there was discussion about Andy Bathie, a 37 year old from the UK, who donated sperm to allow a lesbian couple to have a baby. Now that the lesbian couple have split up, Bathie has to pay child support. Discussing whether this request for child support could ever happen in Australia, an expert in family law, Geoff Monahan, assured the television viewers that Australian law precluded such a thing. Monohan explained elements of Australian Law, specifically the Artificial Conception Act – 1984, which determined parentage of children born by artificial conception.

For children born to married women whose husbands have consented to AID, or to women in established de facto relationships whose partners have consented, the child has them listed as mother and father.

However, for children born by articificial conception to any other, the child will be legally fatherless, as the Act states that in all cases of artificial conception, the donor is not the legal father. A discussion paper by Lawlink NSW states, “For such children there can never be completion of birth registration particulars showing anything under the heading “father”.”

I was more than a little stunned as I contemplated the gravity of what I had just heard. I found it hard to believe that a nation would enshrine into law a situation where children can intentionally be born in such a way that they are deemed legally fatherless?

While I am sure that some very fine minds worked upon such legislation, one has to wonder what they were thinking. It’s one thing for children to face having an absent or unknown father because of family tragedy, or a relationship breakdown. However, it is another thing altogether for the law to sanction that a child may be bought into the world legally fatherless. A woman’s desire to bear a child should not be allowed to subjugate the child’s rights to legal parentage. This is a grave misuse of technology.

Children born by artificial conception are not fatherless. It takes two – and whether reproduction happens the old fashioned way, or whether the process involves advanced medical and scientific technology, still the only way of a child being created is with a man’s sperm and a woman’s egg.

If this legislation was enacted to protect men and women from uncertain emotional and financial responsibilities, we have simply buried our collective heads in the sand.

What happens when these children gain a voice? What happens when they are old enough to seek justice from a society that felt it was appropriate to deny them such a fundamental notion?

We have become so enamoured with the idea of our rights that we have lost sight of our responsibilities. It seems that we have reduced bringing a child into the world to a transaction that fulfils desires, yet, which does not give care or consideration to the best interests of the child. Surely no-one can claim that intentionally being made ‘legally fatherless’ is in the best interests of the child?

It is also intellectually inconsistent for society to allow men to deposit their DNA, so that he will help create new life, and yet essentially deny that they will father children.

Family relationships are complex. We know that a child’s social fathering may not necessarily come from its biological father, but the biological father is someone from whom the child can trace their genetic make-up – and any hereditary matters.

Professor G.R. Dunstan, at a seminar of the Royal College of Obstetricians and Gynaecologists, reflected on this dilemma regarding parentage of children born by artificial conception back in 1976. He said, “The real issue is one of truth, and of men’s right to know their true identity, only a register of genetic identity, maintained alongside of the register of social identity, will serve… Some may see in such a register a threat to civil liberties – another advance towards the computerised tyrant state where all is known and all recorded. Others will see in it a threat to the donor… So be it. We must choose.”

It is fundamentally untrue that a child is biologically fatherless and it is unconscionable that children are being forced into this status by law. In a misguided effort to protect men from financial recompense, we have stolen a fundamental right from Australian children. If that is the choice our nation has made, it is the wrong one.