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‘Sperm bandits’, birth control fraud and the battle of the sexes

Published online by Cambridge University Press:  02 January 2018

Sally Sheldon
Sally Sheldon*
Affiliation:
Law Department, Keele University
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Abstract

This paper briefly reviews the US case law dealing with the issue of birth control fraud and speculates on the possibility of a similar action succeeding in the UK. It then focuses on newspaper reporting of one such case. A common media reading of this case, and one which can also be detected in some academic commentary of similar cases, is to contextualise it as part of an ongoing ‘battle of the sexes’, where historic poles of inequality have become reversed and women have gained unfair (legal) advantage in procreative matters. It is argued that such an understanding is flawed and misleading, serving to distract attention from the legal structuring of these kinds of disputes. The paper concludes that the operation of the law can here be better understood as seeking to support the nuclear family in a way which can impact negatively on both individual men and individual women. The birth control fraud cases invite us to rethink the way that parental obligations are imposed and to justify more rigorously the choices which we make in this regard.

Type
Research Article
Information
Legal Studies , Volume 21 , Issue 3 , September 2001 , pp. 460 - 480
Copyright
Copyright © Society of Legal Scholars 2001

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References

1. Laqueur, T ‘The Facts of Fatherhood’ in Hirsch, M and Fox Keller, E (eds) Conflicts in Feminism (New York and London: Routledge, 1990) p 232.Google Scholar

2. These facts are taken from the newspaper reports of the case: see B Erbe ‘A father's rights’ (1998) Scripps Howard News, 1 December, http://www.news-observe.com/newsroom/ntn/voices/120198/voices8_11252_noframes.htm; S Litvinoff ‘The Sperm Bandits’ (1998) Independent on Sunday, 29 November; S McCarthy ‘A Couple's Deal to Use Birth Control is a Deal’ (1998) Dallas Morning News, 20 November; R Prasad ‘The Sperm that Turned’ (1999) Guardian, 11 February; B Vobejda ‘Sexual Commodities’ (1998) Minneapolis Star Tribune, 24 November.

3. The tort of conversion is committed when a defendant deals with the goods of a person in a way which constitutes an unjustifiable denial of her or his rights in them or which involves the assertion of rights inconsistent therewith. Such interference must be deliberate and not just negligent: see generally Rogers, W V H Winfeld & Jolowicz on Tort (London: Sweet & Maxwell, 15th edn, 1998) pp 588–612.Google Scholar

4. SF v State ex rel T M (1996) 695 So 2d 1186, (1996) Ala Civ App LEXIS 856 (Court of Civil Appeals of Alabama).

5. The respective parent's share in the costs will be determined by the courts taking into account the income of each.

6. For an assessment of how a similar action might be received in the Israeli context, see P Shifman ‘Involuntary Parenthood: Misrepresentation as to the Use of Contraceptives’ (1990) 4 IJLF 279.

7. This paper will use terminology in the way recently proposed in a helpful article by Andrew Bainham. He suggests that we need three separate legal constructs: parentage (which is equivalent to genetic parentage), parenthood (which conveys ongoing legal status as a parent involving responsibility for raising a child) and parental responsibility (which involves the legal powers and duties which are associated with raising a child). ‘Fatherhood’ will be used here to intend the specifically male equivalent to the more general ‘parenthood’ . See Bainham, A ‘Parentage, Parenthood and Parental Responsibility: Subtle, Elusive Yet Important Distinctions’ in Bainham, A, Day Sclater, S and Richards, M (eds) What is a Parent? A Socio-Legal Analysis (Oxford: Hart Publishing, 1999).Google Scholar

8. For a useful overview see G Douglas and N V Lowe ‘Becoming a Parent in English Law’ (1992) 108 LQR 414.

9. Subject to the exemption contained in s 6 of the Act which is discussed below: see nn 79–80 below and accompanying text.

10. The government has recently announced its intention to reform the law so as to grant parental responsibility automatically also to the unmarried genetic father who jointly registers the birth: see Hansard 9 Dec 99 398w, Lord Chancellor's Department Consultation Paper: Court Procedures for the Determination of Paternity and the Law on Parental Responsibility for Unmarried Fathers (London: HMSO, 1998).

11. See eg: L Pamela P v Frank S 59 NY 2d 1 (22 March 1983); Stephen K v Roni L 105 Cal App 3d 640 (12 May 1980); In the Matter of Alice D v William M 113 Misc 2d 940 (27 April 1982); Orlanda C Hughes v Carl K Hutt, 500 Pa 209, 455 A 2d 623 (28 January 1983); S F v State ex rel TM 695 So 2d 1186, 1996 Ala Civ App LEXIS 856; Erwin L D v Myla Jean L 41 Ark App 16(10 February 1993); Cynthia Beard v Nathan Richard Skipper Jr 182 Mich App 352 (10 October 1989); Sandra Kay Faske, v Antonio Bonann 137 Mich App 202 (5 September 1984); Merley Polo Murphy and County of Olmsted v John Dale Myers 560 N W 2d 752 (8 April 1997); Mark J Welzenbach v Patricia T Powers 139 N H 688(30 June 1995); C A M v R A W 237 NJ Super 532(9 January 1990); Jose F v Pat M 154 Misc 2d 883 (13 July 1992); Douglas R v Suzanne M 127 Misc 2d 745 (14 February 1985); Larry Aubrey Henson v Elizabeth Ellen Sorrel, C A Tennessee, Western Section at Jackson (8 January 1999); Linda D and Baby Boy D-C v Fritz C Wash App 288 (23 July 1984).

12. For convenience, and despite the range of actions involved, these cases are referred to here together as the ‘birth control fraud cases’.

13. A woman who claimed that she had acted in reliance on a man's assertion that he had had a vasectomy was unable to claim compensation for damages relating to the birth of her child. The man's financial liability extended no further than the payment of child support: C A M v R A W (1990) 237 N J Super 532. In a dissenting judgment, Stern J reasoned that ‘[i]f physical injury premised on the failure of a spouse or non spouse sexual partner to disclose a contagious disease is actionable… I fail to see why another type of fraud resulting in the “unprotected” sexual relationship should not be cognizable at least where the sexual activity has impact on the plaintiff s physical condition’ (at 547).

14. Barbara A v John G (1983) 145 Cal App 3d 369. In this case, a woman's reliance on her lawyer's assurance that he ‘couldn't possibly get anyone pregnant’ and the damage she incurred (an ectopic pregnancy) were sufficient to convince the court of her action in intentional and negligent fraud and deceit as well as battery.

15. In the Matter of Alice D v William M 113 Misc 2d 940 (27 April 1982).

16. S F v State, ex rel TM (1996) 695 So 2d 1186, (1996) Ala Civ App LEXIS 856 (Court of Civil Appeals of Alabama). See the judgment of Crawley J at 1191.

17. Mercer County Department of Social Services v Alf M 155 Misc 2d 703, 589 NYS 2d 288 (Fam Ct, 1992). See also State, ex rel Hermesmann v Sever 252 Kan 646, 847 P 2d 1273 (1993); and In the Matter of Noah Weinberg as Assignee of Patricia Ann H v Omar E (1984) 106 AD 2d 448; 482 NYS 2d 540; (1984) NY App Div LEXIS 21486.

18. Matter of Department of Social Servs v Victor A R (1986) 120 AD 2d 526.

19. Larry Aubrey Henson v Elizabeth Ellen Sorrell (1999) Tenn App LEXIS 12.

20. (1981) SC 64.

21. (1981) SC 64.

22. Whilst it may be imprudent to rely on claims made in the context of a casual liaison, there is surely a strong case for arguing that it is reasonable to rely on the assurances of a long-term sexual partner.

23. On sexual contract cases in the United States, see J Larson ‘Women Understand So Little, They Call My Good Nature “Deceit”: A Feminist Rethinking of Seduction’ (1993) 93 Col LR 374; D Subotnik “‘Sue Me, Sue Me, What Can You Do Me? I Love You”: A Disquisition on Love, Sex and Talk’ (1995) 47(3) Fla L Rev 311.

24. In the United Kingdom the legal status of sperm remains unclear. As Kennedy and Grubb note, sperm banks treat sperm as the property of donors, but sperm donation is usually treated as a service rather than a commodity transaction: see Kennedy, I and Grubb, A Principles of Medical Law (Oxford: Oxford University Press, 1999)Google Scholar paras 15.18–15.22. See generally G Dworkin and I Kennedy ‘Human Tissue: Rights in the Body and its Parts’ (1993) 1 Med LR 291.

25. Wallis characterised his provision of semen as a bailment: a contract that provides for the delivery of personal property by the owner for a specific purpose. Only possession is transferred; the owner retains title and ownership. When the purpose is fulfilled the property is returned. This, however, seems no less tenuous.

26. Barbara A v John G (1983) 145 Cal App 3d 369.

27. See Chatterton v Gerson (1981) QB 432. There is an obvious parallel here with cases involving the transmission of sexual disease. Does a trespass to the person take place where my partner conceals knowledge of his HIV-positive status with the result that I consent to have unprotected intercourse and become infected myself? See R v Clarence (1988) 22 QBD 23; S Bronit ‘Spreading Disease and the Criminal Law’ (1994) Crim LR 21.

28. Pasley v Freeman (1789) 3 TR 51.

29. Diduck, A and Kaganas, F Family Law, Gender and the State (London: Hart Publications, 1999).Google Scholar

30. Child welfare must be the paramount concern in all decisions where the upbringing or administration of a child's property is before the court: see s 1(1) of the Children Act 1989. The principle is not paramount in the 1991 legislation, but is merely one factor to which the Child Support Agency must have regard, see Ex p Biggin (1995) 1 FLR 851. The welfare principle first found its way into the English statute books in 1925, although it was already part of case law. For a useful discussion of its development see Lowe, N ‘The House of Lords and the Welfare Principle’ in Bridge, C (ed) Family Law Towards the Millennium: Essays for P M Bromley (London: Butterworths, 1997)Google Scholar; see also S M Cretney “ ‘What Will the Women Want Next?” The Struggle for Power Within the Family 1925–1975’ (1996) 112 LQR 110.

31. See nn 58–67 below and accompanying text for more discussion.

32. (1999) 4 All ER 961. In Macfarlane, the House of Lords held that parents of an unwanted healthy child born as a result of a doctor's negligence could recover damages for the mother's pain, suffering and loss of amenity during pregnancy and childbirth, but not for the economic loss and costs of ordinary child care thereafter. See also: Greenfield v Irwin and Ors (CA, 24 January 2001).

33. Above n 6.

34. J Terrell Mann ‘Misrepresentation of Sterility or of Use of Birth Control’ (1987-88) 26 Jo Fam L 623.

35. In the United States, precisely this argument failed in In the Matter of L Pamela P v Frank S (1983) 59 NY 2d 1, although it was accepted in a minority judgment in S F v TM: n 16above. Neither Shifman nor Terrell Mann attempts a justification of why child welfare considerations dictate that the father's tort claim against the mother should be so limited in cases of birth control fraud but not in others.

36. M-T Meulders-Klein ‘The Position of the Father in European Legislation’ (1990) 4 IJLF 131 at 135, 151 (emphasis added).

37. McCarthy, n 2 above.

38. This provides some support for Richard Collier's claim, pace those who have contended the anti-feminist backlash is a specifically American phenomenon, that the language of ‘sex war’ also has much resonance on this side of the Atlantic: R Collier “‘Waiting Till Father Gets Home”: The Reconstruction of Fatherhood in Family Law’ (1995) 4 SLS 5.

39. Vobejda, n 2 above.

40. McCarthy, n 2 above at 151.

41. Vobejda, n 2 above.

42. Prasad, n 2 above.

43. Faludi, S Stiffed: The Betrayal of the Modern Man (London: Chatto & Windus, 1999)Google Scholar. As it says on the inside cover: ‘[a]t the end of the millennium it is men who are in crisis. Even in the world that they are supposed to own and run, Faludi finds that men just as much as women are at the mercy of cultural forces that distort their lives and plague our culture. Her journey through the modem masculine landscape takes her deep into the lives of individual men whose accounts reveal the agonized heart of the male dilemma. Stiffed brings us vividly into the world of men… whose sense that they've lost jobs, skills, roles, wives, teams and a secure future is only one symptom of a wider betrayal.’

44. Phillips, M The Sex-Change Society: Feminised Britain and the Neutered Male (London: The Social Market Foundation, 1999).Google Scholar

45. Greer, G The Whole Woman (London: Anchor, 2000)Google ScholarPubMed at 1. See also Beck's contention that ‘to the degree that the economic inequality between men and women is decreased… fathers become aware of their disadvantage, naturally and partially legally. The woman has possession of the child as a product of her womb… The men who free themselves from the “fate” of a career and turn to their children come home to an empty nest’: Beck, U Risk Society: Towards a New Modernity (London: Sage, 1992) p 113 Google Scholar (emphasis in original). For an interesting discussion of Beck's approach, see Smart, C and Neale, B Family Fragments? (Cambridge: Polity, 1999) pp 13–19.Google Scholar

46. Litvinoff, n 2 above.

47. The phrase ‘disposable sex’ belongs to Farrell, K W The Myth of Male Power: Why Men are the Disposable Sex (New York: Simon & Schuster, 1993)Google Scholar. See generally Collier, n 38 above.

48. Litvinoff, n 2 above.

49. Litvinoff, n 2 above; Prasad, n 2 above. As Michael Thomson has pointed out to me, the choice of Jodie Foster and Madonna by these journalists is, in itself, significant as the sexuality of both women has been a subject of intense public debate and speculation. Madonna's second child was born in the context of her stable, monogamous relationship with the child's father, English film director, Guy Ritchie. The different reaction of the British press to the two pregnancies has been marked.

50. Erbe, n 2 above.

51. Prasad, n 2 above.

52. M Lawson ‘Hands off my Sperm’ Guardian, 26 November 1998.

53. Erbe, n 2 above. See also McCarthy, n 2 above.

54. Kenneth Baker, then chairman of the Conservative Party, cited in Bradshaw, J, Stimpson, C, Skinner, C and Williams, J Absent Fathers (London: Routledge, 1999) p 1.CrossRefGoogle Scholar

55. See particularly Smart, C The Ties That Bind: Law, Marriage and the Reproduction of Patriarchal Relations (London: RKP, 1984)Google Scholar; Smart, C “‘There is of Course the Distinction Dictated by Nature”: Law and the problem of Paternity’ in Stanworth, M (ed) Reproductive Technologies: Gender, Motherhood and Medicine (Oxford: Blackwell, 1987)Google Scholar; A Diduck ‘The Unmodified Family: The Child Support Act and the Construction of Legal Subjects’ (1995) 22(4) JLS 527; Diduck and Kaganas, n 29 above p 30; Harding, L Family, State and Social Policy (London: Macmillan, 1996)CrossRefGoogle Scholar; R Collier ‘The Campaign Against the Child Support Act’, “Errant Fatherhood” and “Family Men” (1994) Fam Law 384; Collier, n 38 above.

56. This is not to claim that the genetic link is historically without importance. Bastardy and affiliation proceedings were used to attach unmarried women to men long before the 1980 s, albeit with varying degrees of success. See particularly Barton, C and Douglas, G Law and Parenthood (London: Butterworths, 1995) pp 195–202; Smart (1987), n 55 above.Google Scholar

57. Between 1971 and 1986 the number of sole parent families increased from 600,000 to over one million: Office for Population Censuses and Statistics The General Household Survey (London: HMSO, 1990). Between 1980 and 1989 the number of sole-parent families dependent on supplementary benefits increased from 330,000 to 770,000. By the late 1980s it was believed that private arrangements and the courts were ineffective in obtaining a significant measure of financial support for children from absent parents. Indeed, in 1986 only 11% of total lone-mother income came from child maintenance: R Boden and M Childs ‘Paying for Procreation: Child Support Arrangements in the UK’ (1996) 4(2) FLS 131 at 140. For similar concerns and reform in the Australian context, see Parker, S. ‘Rights and Utility in Anglo-Australian Family Law’ (1992) 55(3)Google Scholar MLR 311.

58. For example, Peter Lilley lambasted those ‘Dads who won't support the kids of ladies… they have kissed’ (cited in Bradshaw, Stimpson, Skinner and Williams, n 54 above, p 1). Bradshaw, Stimpson, Skinner and Williams also cite Margaret Thatcher: ‘No father should be able to escape from his responsibility and that is why the government is looking for ways of strengthening the system for tracing an absent father and making the arrangements for recovering maintenance more effective’: n 54 above, p 124.

59. For a discussion of the way in which such images of absent fathers were contested by men during the campaigns for change of the Child Support Act 1991, see Wallbank, J. The Campaign for Change of the Child Support Act 1991: Reconstituting the “Absent” Father’ (1997) 6(2)Google Scholar SLS 191; Collier, n 55 above.

60. The context of reform was often explicitly punitive. For example, one United States senator argued: ‘This is a matter to be pressed to the point of punitiveness… Hunt, hound, harass: the absent father is rarely really absent, especially the teenage father, but merely unwilling or not required to acknowledge his children's presence… As for the too-much-pitied unemployed teenage male there would be nothing wrong with a federal work program - compulsory when a court has previously ordered him to support his children - with the wages shared between father and mother…. [Such a programme would] make a statement about legitimacy: there must be an acknowledged providing male.’: Senator Moynihan, cited in Krause, H D ‘Child Support Reassessed: Limits of Private Responsibility and the Public Interest’ in Eekelaar, J and MacLean, M (eds) A Reader on Family Law (Oxford: OUP, 1994) p 238.Google Scholar

61. Bradshaw, Stimpson, Skinner and Williams, n 54 above, p 226; see also Diduck, n 55 above. The legal parents will normally be the genetic parents, but will also include those who are parents by virtue of the operation of ss 27, 28 or 30 of the Human Fertilisation and Embryology Act 1990, or by having legally adopted a child.

62. See Collier, n 38 above, at 7; Wallbank, n 59 above, at 210,212. Wallbank cites Bruce Lidington, Chair of Families Need Fathers: “on custodial fathers are one of the most vulnerable sections of society, most are financially and emotionally exhausted by the divorce process and, with the possible exception of Families Need Fathers, have no organised way of challenging any untruths published by powerful interests’ (at 206).

63. See eg Garnham, A and Knights, E Putting the Treasury First: the Truth about Child Support (London: CPAG, 1994)Google Scholar. There is an obvious difference in the application of the Act to women on state benefits and those not. Whilst the legislation applies to all children, there is no obligation on parents to make an application to the Child Support Agency. Consequently, those parents not in receipt of state benefits may choose to negotiate payments between themselves. However, where the mother wishes to claim benefits then she must involve the Agency. And where she does not give the father's name she may be penalised by a ‘reduced benefit direction’, unless she can prove ‘risk to her or the child of harm or undue distress’ . See nn 79–80 below and accompanying text.

64. Boden and Childs, n 57 above, at 155–156.

65. K Clarke, G Craig and C Glendinning ‘Money isn't Everything, Fiscal Policy and Family Policy in the Child Support Act’ (1995) 29(1) Social Policy and Administration 26.

66. Krause, n 60 above, p 218.

67. Garnham and Knights, n 63 above, p 71.

68. Smart (1984), n 55 above; see also C Smart ‘Regulating Families or Legitimating Patriarchy? Family Law in Britain’ (1982) 10 IJSL 129.

69. Eg the desire to protect the nuclear family cannot entirely explain the operation of the Child Support Act 1991’ s definition of the ‘absent parent’ in s 3(2). This does not include anyone who has performed the social functions of a parent in the past without becoming a legal parent. Such a person may abandon this role without legal liability. Whilst recognising social obligations, the changes announced to the assessment formula by the government's 1995 White Paper continue to prioritise genetic links: see Lord Chancellor's Department Improving Child Support Cm 2745 (London: HMSO, 1995); Boden and Childs, n 57 above, at 148. See also the discussion in n 93 below.

70. Bradshaw, Stimpson, Skinner and Williams, n 54 above, p 124.

71. Re G(a Minor) (Parental Responsibility Order) (1994) Fam Law 372; Re E (A Minor) (Parental Responsibility Order) (1995) Fam Law 121. The courts will, however, consider the degree of commitment which the father has shown towards his children, the degree of attachment between them, and his reasons for applying for the order: Re H (Illegitimate Children: Father: Parental Rights) (No 2) (1991) 1 FLR 21. Under proposed reform, if the man's name is recorded on the birth certificate then he will also be accorded automatic parental responsibility: see n 10 above.

72. In the matter of Karen Beth B v Douglas G (1995) 216 AD 2d 12; 627 NYS 2d 367; 1995 NY App Div LEXIS 5831. In the case of G v Netherlands (1993) EHRR CD 38, however, the argument that a man can establish the existence of ‘family life’ with a child purely on the basis of a genetic link was rejected. In this case, after a number of visits, a man who had donated sperm to lesbian friends was refused access to their baby. Respect for his family life had not been violated under art 8 of the European Convention of Human Rights, as ‘family life’ involved close personal ties in addition to genetic parentage.

73. See Diduck, n 55 above, Boden and Childs, n 57 above, at 150.

74. Vobejda, n 2 above.

75. The pressure group, Families Need Fathers, certainly make this connection in their political campaigns: “‘Absent Parents” may care very much and in no way have chosen to be “absent”… (fathers)’ nurturing role must cover contact and residence (access and custody), as well as merely “footing the bill” (1990, cited in Bradshaw, Stimpson, Skinner and Williams, n 54 above, at 183); see also Wallbank, n 59 above, at 207; Garnham and Knights, n 63 above; and Bradshaw and Millar Lone Parent Families in the UK Research Report No 6, DSS (London: HMSO, 1991). One response to the Lord Chancellor's Department's recent Consultation on parental responsibility argued: ‘it is terribly wrong for a woman to bar the father from seeing his children out of spite, yet he is harassed by the csa to pay for them (I think you could compare it to buying a car on HP but not being allowed to use it)’: see Lord Chancellor's Department, n 10 above.

76. See Bainham, n 7 above.

77. Matter of Craig V v Mia W 116 AD 2d 130, LEXIS 50371.

78. It might be suggested that as many rapes take place within marriage as do outside it, yet it is never argued that the husband should have neither parental responsibility nor financial liability in respect of his child. Whilst this argument ha? some force from the pint of view of the unmarried father, from the mother's point of view it is less compelling. Its basic premise is to suggest that, given that one group of women are currently subject to certain problems, these problems should therefore also be extended to all women in the name of equality. Further, it could be argued that the married and unmarried rapist are distinguishable: where a woman is married to her rapist, she is unfortunately inevitably in an ongoing relationship with him which it would take legal procedures to dissolve. Recognising his financial responsibility towards a child could arguably be founded on this relationship rather than on conception per se. Whether such a man is a fitting holder of parental responsibility (which is currently awarded automatically – and therefore irrevocably – to all married fathers) is obviously a separate issue. Second, it might be suggested that a woman could have an abortion if she chose; even those with strong religious or other moral objections to abortion might feel justified in the case of rape. Whilst it is hopefully uncontroversial that a woman should be allowed access to termination in these circumstances, this is surely a matter for her choice, and to penalise her financially or to force her to name her rapist where she is reluctant to do so, seems extremely harsh. I would like to thank one of the anonymous referees for Legal Studies for raising these two points.

79. The White Paper which preceded the introduction of the Child Support Act 1991 and the DSS guidance which followed it both accepted rape and incest as clear examples of ‘good cause’ . However, it has been suggested that the likelihood of obtaining exemption varies greatly depending on the interviewing Child Support Agency officer, with Garnham and Knight giving one example of a woman being threatened with reduced benefit if she could not produce the name of her rapist: n 63 above, p 85. The Child Support Agency in a response to the Lord Chancellor's Department consultation on parental responsibility (n 10 above), go no further than saying that they would ‘not normally insist on pursuing action on a case where there is evidence of rape, incest or sexual abuse’ (emphasis added), but it should be noted that only 16% of claims of ‘good cause’ are accepted. Child Support Agency Annual Report and Accounts 1996/7 (London: HMSO, 1997) cited in N Lowe and G Douglas Bromley's Family Law (London: Butterworths, 1998) p 732. As a result of a steady increase in the number of women refusing to name a child's father, in 1996 the government increased the penalty for failing to name to a reduction of 40% of the benefits paid over three years: Child Support (Maintenance Assessment Procedure) Regulations 1992, SI 1991/1813, reg 36, as amended.

80. A recent Home Office Study looked at almost 500 incidents initially recorded as rape by the police in 1996. Of these, only 7% resulted in a conviction for an offence other than rape; and only 7% resulted in an acquittal or for the case to lie on file: see Harris, J and Grace, S A Question of Evidence ? Investigating and Prosecuting Rape in the 1990s (London: Home Office, 1999)Google Scholar; see also Lees, S Carnal Knowledge: Rape on Trial (Buckingham: Opn University Press, 1996)Google Scholar.

81. Malinowski, B ‘The Principle of Legitimate Parenthood and the Basis of Social Structure’ in Laub Coser, R (ed) The Family, its Structures and its Functions (New York: St Martin's Press, 1969).Google Scholar

82. H Krause, n 60 above, p 220.

83. J Weeks ‘Supporting Families’ (1999) 70(2) The Political Quarterly 225.

84. Cited in Diduck, n 55 above, at 538 (emphasis in original). The then United States Democrat President, Bill Clinton, has likewise noted that ‘[t]he single biggest problem in our society may be the growing absence of fathers from our children's homes because it contributes to so many other social problems’: cited in D Fost ‘The Lost Art of Fatherhood’ (1996) 18 American Demographics 16.

85. Laqueur, n 1 above.

86. Under the terms of ss 27 and 28 of the Human Fertilisation and Embryology Act 1990, where gametes are obtained through a licensed clinic, sperm and egg donors are not deemed to be legal parents. When the woman receiving treatment services is married, her husband will be the legal father unless he objects. Where she receives these services in conjunction with a male partner, he will be deemed to be the legal father.

87. For an insightful discussion of some of the problems caused by family law's attempts to impose this model onto families fragmented across households, see Smart, C and Neale, B Family Fragments? (Cambridge: Polity, 1999)Google Scholar. A more radical way forward might be suggested by the recent writing of David Morgan, who has suggested that we would be better advised to think in terms of supporting family practices - of ‘doing’ rather than ‘being’ family: see Morgan, D H J Family Connections (Cambridge: Polity, 1996)Google Scholar and ‘Risk and Family Practices: Accounting for Change and Fluidity in Family Life’ in E B Silva and C Smart (eds) The New Family? (London: Sage, 1999) pp 13–30.

88. Eekelaar notes several practical reasons in favour of the social rule that parents have particular obligations towards their children: first that such obligations coincide with the wishes and instincts of most parents and will usually be well performed by them; secondly, this is linked to a bonding process which can be of importance to the child's sense of identity; and thirdly it allows the costs of child-rearing to accrue incrementally, and marginally, to the costs of an adult household, and is therefore economically efficient: J Eekelaar ‘Are Parents Morally Obliged to Care for Their Children?’ (1991) 11 OJLS 340 at 352. These practical reasons fit well in the context of a nuclear family with parents living with their children. They do not all apply as easily to the kinds of situation which have been described above.

89. Ibid.

90. Johnson v Culvert (1993) 5 Cal 4th 84.

91. G Douglas ‘The Intention to be a Parent and the Making of Mothers’ (1994) 57 MLR 636 at 641 (emphasis in original).

92. This is not to deny some of the potential problems in according greater weight to intention, which Douglas herself recognises.

93. Lord Chancellor's Department, n 10 above. The proposal with regard to parental responsibility is not to extend it to all genetic fathers, merely those who co-register the birth: this can also be located in terms of a trend towards recognising intention as paramount in allocating parental rights and obligations.

94. See A Gillan ‘Register Plan for Donor Births’ Guardian, 25 April 2000. The intention here is merely to note a general trend whereby, in Bainham's terms, legal parentage becomes of greater significance in determining both legal parenthood and various parental rights and obligations such as parental responsibility: see Bainham, n 7 above. Clearly, the question of whether a child should have the right to information regarding its parentage raises different ethical considerations from those involved in the allocating various parenthood rights and obligations, such as parental responsibility.