Should paternity be linked to sexual intercourse?

1. Should paternity be linked to sexual intercourse? Michael Eburn School of Law UNE

2. Introduction • This paper will look at paternity and the misplaced focus the law places on sex to determine who has paternal rights and responsibilities. • There are two reasonable options (if a choice is needed) – biological or social. • But the law uses sex. ALTA Conference, Hamilton NZ

3. Paternity and family law • ‘… the natural meaning of the word [parent] of a child is the biological mother or father of the child and not a person who stands in loco parentis.’ (Tobin v Tobin (1999) 24 Fam LR 635). • Also – adopting parent. • A man who consents to AI procedure. ALTA Conference, Hamilton NZ

4. State legislation • Defines who is a father, and who is not. • Sperm donor is not the father. • Where a woman has a male partner (or female in WA and NT) who consents to AI, that partner is a parent. ALTA Conference, Hamilton NZ

5. Assumptions • Every child needs a father. • A family is the nuclear family – mum, dad, kids (and the dog?) • Anything else is a departure from the norm or best. ALTA Conference, Hamilton NZ

6. Artificial insemination • Legislative schemes assume child will be born into nuclear family. • Sperm donor will be anonymous and will have no involvement with the child. • BUT not everyone behaves as the legislators expect them to. ALTA Conference, Hamilton NZ

7. Re Patrick • Donor was known. • Donor wanted to be involved in child’s life. • Not so unusual. ALTA Conference, Hamilton NZ

8. The choice • Either: Biology or Social relationshipsdefine ‘father’. • In fact the question is ‘did they have sex?’ • Consider the story of Neville? ALTA Conference, Hamilton NZ

9. Neville • His sister’s partner Mary, and child A. • An anonymous donation and child B. • A ‘one night stand’ and child C. • His sister’s partner again, and child D. • Biological – ‘father’ of all 4. • Social – uncle to A and D. • Legal – father to A and C. ALTA Conference, Hamilton NZ

10. All biological fathers are ‘father’. • Recognise children’s interest in biological history. • Children’s interests are paramount. • Recognise need to take responsibility for reproductive decisions. • Sperm donors are not protected from responsibility. ALTA Conference, Hamilton NZ

11. Social relationships • Give effect to people’s choices –– the promise to parent, or not. • Recognise the reality of children’s lives. • Men and women can contract out of relationships. • Sperm donors can’t insist on families without responsibility. ALTA Conference, Hamilton NZ

12. Do we need to make a choice? • Recognise that a child can have more than two parents. • Roles and responsibilities can be determined on a case by case basis. • Any person who obtains a parenting order is also liable to pay child support. ALTA Conference, Hamilton NZ

13. Conclusion • If we have to make a choice as to who is the father, it should be biological or social. • It is in fact whether the parents had sex. • Heterosexual, medical model. ALTA Conference, Hamilton NZ