Legal rules play an important role in recognising, protecting, and supporting the family. As the notion of a ‘family’ is constantly changing, the law sometimes lags behind and fails to afford recognition, protection, or support to the diverse forms of the family present in society. So too, the law sometimes fails to afford proper recognition to the diverse functions a family fulfils. The rise in step-families, parenthood outside marriage and the use of assisted reproduction, including surrogacy, have re-shaped the notion of ‘family’ and the issue of how many parents a child can legally have. The functions of the family have, likewise, changed inter alia because of women’s increased participation in paid labour, greater emphasis on personal responsibility for one’s own financial welfare, and the movement away from the welfare state in some jurisdictions.
Plurality and Diversity in Law: Family Forms and Family’s Functions (edited by Jacqueline Heaton and Aida Kemelmajer) seeks to ascertain whether and, if so, how family law recognises multiple parents in the various family forms that occur in modern society. The book also investigates which functions of the family the law recognises and whether the presence of children changes the recognition that is afforded to these functions.
The book comprises international perspectives and comparative analyses in English and French on jurisdictions from Africa (South Africa), Asia (Japan and Vietnam), Europe (Austria, Belgium, Croatia, Denmark, Germany, Greece, Italy, Luxembourg, Poland, and the Netherlands), Oceania (Australia), South America (Argentina), North America (Quebec, Canada), the Middle East (Turkey), and the United Kingdom (England and Wales). In their general report, the editors draw conclusions from the contributions on the various jurisdictions. The general report also incorporates research on Estonia and Portugal which is based on online reports by Irene Kull and Maarja Torga (Estonia) and Paula Távora Vítor and Rosa Cândido Martins (Portugal) which have not been included in the book.
The contributions on the individual jurisdictions are based on answers to a questionnaire which the editors drafted in an attempt to ensure that the same areas of the law were discussed in respect of each jurisdiction. This objective of this methodology was to facilitate comparison between the various jurisdictions.
The questions in Part A of the questionnaire seek to determine whether and, if so, how family law recognises that a child can have multiple parents. The focus is on step-families where children from one or both spouses/partners are raised in the same household; families where children are raised in more than one household, for example because their parents jointly exercise custody after separation or have never shared a household but share parenting responsibilities; polygamous families where children are raised in a household where one party has more than one spouse/partner; families where children have been adopted but maintain links (legal or de facto) with their biological families; families where children are cared for in terms of a kafala arrangement under Islamic law; families where a child was born as a result of donor-assisted reproductive technology using one male and one female gamete; families where a child was born as a result of ‘three-parent’ medical technology where the genetic material of two females and one male is used in order to remove genetic mutations that cause serious hereditary diseases; and families where a child was born as a result of surrogacy.
The book shows that the starting point is that family law recognises only two legal parents. Generally, in countries that do not permit same-sex marriages/partnerships, the two parents who are legally recognised are one male and one female person (i.e. one father and one mother). The law in all the jurisdictions surveyed consider the child’s birth mother (i.e. the woman who gives birth to the child) to be the child’s mother. Thus, gestation/giving birth is the determining factor in so far as legal motherhood is concerned. For the father, either marriage to (or a legally recognised partnership with) the birth mother, or a biological link with the child is the foundation of legal parenthood. If the birth mother has a husband/partner, this person is the child’s father (or second parent). If the presumption of paternity is rebutted, the biological father (i.e. the person whose sperm merged with the mother’s ovum) can, in some jurisdictions, become the child’s legal parent by acknowledging/recognising the child or getting a court order declaring that he is the child’s father. Then, he alone is the child’s father. In other words, he does not become an additional parent. However, in some countries, the courts are allowing both the biological father and the mother’s husband/partner to be the child’s legal parent if this is in the child’s best interests. If the birth mother is unmarried and not a party to a recognised partnership, the law generally adopts one of two approaches: (i) the biological father is the child’s second legally recognised parent if he acknowledges/recognises the child or gets a court order declaring that he is the child’s father; or (ii) the mother is the child’s only legally recognised parent.
‘Three-parent’ medical technology does not alter these rules. Assisted reproduction without surrogacy changes the rules but does so without adding another parent. In the case of assisted reproduction without surrogacy, the birth mother’s husband/partner is the child’s second parent regardless of whether his sperm was used for the assisted reproduction. If surrogacy takes place, the law generally adopts one of two approaches: (i) the surrogate mother’s husband/partner is the legal parent to the exclusion of the intended father; or (ii) the intended father is the legal parent to the exclusion of the mother’s husband or partner. Here, too, the child has only two legal parents.
If the two legally recognised parents are married or are partners in a recognised partnership and their relationship ends, both remain the child’s legal parents. They retain all the responsibilities and rights encompassed in legal parenthood unless the court orders otherwise. The same applies if the child’s parents were never married and were not partners in a recognised partnership but jointly had parental responsibilities and rights in respect of the child (e.g., because the father acknowledged /recognised the child).
If one of the parents remarries or enters into a new legally recognised partnership, the step-parent usually does not become the child’s third legal parent, unless he or she adopts the child. In some jurisdictions, step-parent adoption does not terminate the child’s legal relationship with his or her parents of origin and can therefore be said to result in the child having multiple parents. In other jurisdictions, the adoption terminates the child’s legal relationship with the parent who is not the step-parent’s spouse/partner. In the latter instance, the step-parent replaces the other parent as legal parent, with the result that the child still has only two legal parents. If the step-parent does not adopt the child, he or she can acquire responsibilities and rights by way of a court order, an agreement, delegation or a mandate or in terms of a specific statutory provision which confers a right or imposes a responsibility on the step-parent. Delegation and a mandate does not have the result that the step-parent legally becomes an additional parent to the child. If the step-parent obtains responsibilities and rights by way of a court order or an agreement, the scope of the responsibilities and rights determine whether the step-parent can be said legally to have become an additional parent to the step-child. In some jurisdictions, if the relationship between the child’s parent and the step-parent ends, the step-parent has or may have or acquire a right to maintain contact with the child. This right to contact may qualify as legal recognition of the step-parent’s position as an additional parent to the step-child and may, in this sense, constitute recognition of multiplicity of parenthood.
Subject to exceptions relating to some step-parent adoptions, full adoption normally substitutes the adoptive parents as legal parents for the parents of origin. Kafala is not legally recognised in the jurisdictions surveyed and does not result in a similar change of legal parenthood. In some jurisdictions, the child’s original parents retain their duty of support after the adoption. This duty does not amount to recognition of multiple parents. If the family of origin (or some family members) have contact rights in respect of the child, this might qualify as recognition of multiple parents after the adoption, albeit in a limited sense.
The objective of Part B of the questionnaire was to determine whether the law recognises multiple functions of the family, which functions the law favours, and whether the presence of children in the family makes a difference in regard to the functions that are protected and favoured.
The main functions identified in the contributions are the provision of economic security and financial support to children and economically vulnerable family members; having and raising children; being a place where persons take care of each other; providing a special bond to the members of the family; and being a refuge of love and companionship. The two functions which predominate are the provision of economic security and financial support to children and economically vulnerable family members, and having and raising children.
Generally, the law does not view the family’s functions differently depending on whether children are present in the family. However, if children are present, the function of raising children may be elevated above the other functions and the scope of the provision of economic security and financial support and of caretaking responsibilities is increased. The question whether a child is a step-child, biological child, child born as a result of donor-assisted reproductive technology, ‘three-parent’ child, or a child born as a result of surrogacy plays no role in respect of the functions of the family or the scope of the functions.
Posted by Jacqueline Heaton, Professor, University of South Africa and Aida Kemelmajer, former judge of the Supreme Court of Mendoza and Professor, Universidad Nacional de Cuyo, Argentina
The contributions in the book were written by Graciela Medina (Argentina); Henry Kha (Australia); Elmar Buchstätter and Marianne Roth (Austria); Nicole Gallus, Yves-Henri Leleu, Géraldine Mathieu and Frederik Swennen (Belgium); Branka Rešetar and Nataša Lucić (Croatia); Ingrid Lund-Andersen and Frank Høgholm Pedersen (Denmark); Claire Fenton-Glynn and Jens M Scherpe (England and Wales); Anne Sanders (Germany); Eleni Zervogianni (Greece); Roberta Aluffi (Italy); Françoise Hilger (Luxembourg); Maia Roots (Japan); Błażej Bugajski and Anna Wysocka-Bar (Poland); Michelle Giroux and Louise Langevin (Quebec, Canada); Anne Louw (South Africa); Wendy Schrama (the Netherlands); Meliha Sermin Paksoy (Turkey) and Ngo Thi Anh Van (Vietnam).
British Association of Comparative Law 