Gay and Lesbian Collaborative Co-Parenting in New Zealand and the United Kingdom: ‘The Law Doesn’t Protect the Third Parent’

Regulating Legal Parenthood: Birth Mothers and Second Legal Parents

The Human Assisted Reproductive Technology Act 2004 (HARTA 2004) governs the provision of assisted reproduction treatment in New Zealand. The Act establishes a system of prior authorization of assisted reproduction treatment by the Ethics Committee on Assisted Reproductive Technology, which involves taking the health and well-being of any children born as a result of the treatment into account (s. 4(a)). However, HARTA 2004 does not regulate legal parenthood following the use of assisted reproductive technologies. In New Zealand, the legal parenthood of children is governed by the Status of Children Act 1969 (1969 Act). The 1969 Act was amended by the Status of Children Amendment Act 2004 to cover conception through these technologies. As mentioned above, the law in New Zealand adopts the same starting point as that in the United Kingdom, namely that the woman who gives birth to the child is the child’s legal parent (s. 17). New Zealand law again proceeds on a similar basis to the United Kingdom in that it determines the status of the father or second female parent based on his or her relationship with the mother. However, in the United Kingdom, the law will only automatically consider the father or second female parent a legal parent where they are married to or in a civil partnership with the birth mother. New Zealand law by contrast includes de facto partners (s. 14). In both jurisdictions, donors are not considered legal parents (1969 Act ss. 19–22 as amended by the Status of Children Amendment Act 2004, Part 2; Human Fertilisation and Embryology Act 2008, s. 41).

In the United Kingdom, both the use of assisted reproductive technologies and the consequences of this for legal parenthood are regulated by the Human Fertilisation and Embryology Act 2008 (HFEA 2008). There is an inherent distinction in the HFEA 2008 to be drawn between single women and female couples, on the one hand, and single men and male couples, on the other. In some circumstances, it is possible for a single woman or a female couple to be a child’s sole legal parent(s) from birth. However, as in New Zealand, although it may be possible for a single man to be one of the child’s legal parents at birth, both partners in a male couple will never be considered to be the child’s legal parents from birth. This distinction in terms of legal parenthood for men and women derives from the common law principle that parturition identifies a child’s mother (Ampthill Peerage Case (1977) AC 547, 577) and is contained in the HFEA 2008 (s. 33(1)). Therefore, upon birth, one of the child’s, and perhaps his or her only, legal parent(s) will be his or her birth mother (for a comparison with the position in France, where there is the possibility of having motherless children because women have the right to conceive anonymously, see Lefaucheur, 2004).

HFEA 2008 makes it clear that, as in New Zealand, a child can only have one other legal parent in addition to the birth mother (ss. 36 and 42). However, who this second parent will be depends on the circumstances of conception. If the child is conceived through sexual intercourse, then the common law presumption of pater est quem nuptiae demonstrant will operate, which is rebuttable by DNA evidence (Family Law Reform Act 1969, s. 26). The effect of this is that, on birth, the legal father of a child born through sexual intercourse will be the biological father or, if no DNA tests have been conducted, the mother’s husband if she has one. Although conception through sexual intercourse could conceivably feature in collaborative co-parenting arrangements for a variety of reasons, the evidence from the case law and empirical studies is that some form of assisted reproduction is more common (see also Kelly, 2007). Even if conception occurs through assisted reproduction, the law distinguishes between situations where single women and female couples not in a civil partnership/marriage conceive at home, on the one hand, as compared to single women and female couples who conceive at a licensed fertility clinic or female couples in a civil partnership/marriage who conceive at home, on the other. In the former situation, the common law rules apply, whereas female civil partners/married couples are both treated as the child’s parents from birth, regardless of whether assisted conception occurs at a clinic or elsewhere, provided no absence of consent can be shown (HFEA 2008, s. 42). In addition to this, where the appropriate consent forms have been signed, female couples who are not in a civil partnership/marriage can be the legal parents on birth provided they are treated at a licensed fertility clinic (HFEA 2008, ss. 43 and 44; for an example of where the appropriate consent forms had not been signed, see AB v CD [2013] EWHC 1418 (Fam)). In each of these cases, the biological father would not be considered one of the child’s legal parents (HFEA 2008, s. 45(1)). New Zealand law, by contrast, does not require unmarried female couples to conceive in a clinic in order to benefit from automatic legal parenthood but rather applies to all assisted reproduction procedures ‘regardless of where, or how (for example, with whose help) the procedure is carried out’ (1969 Act, s. 15(1) as amended by the Status of Children Amendment Act 2004, Part 2).

The position in relation to male parents who conceive through assisted reproduction is different. In both New Zealand and the United Kingdom, because the birth mother is always initially one of the child’s two legal parents, a male couple cannot be considered the child’s legal parents from birth. However, s. 54 of the HFEA 2008 allows a male couple, who are either civil partners or living in an ‘enduring family relationship’ and one of whom is the child’s biological father, to apply for a parental order, between 6 weeks and 6 months after birth, making them and not the gestational mother (provided she consents) the legal parents. This option was not previously available to single men (or women; see Re Z (A Child) (No. 2) [2016] EWHC 1191 (Fam)). However, the Government has now introduced a remedial order to address this disparity which came into force in January 2019 (Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018). In New Zealand, there is no mechanism equivalent to the parental order for gay couples. What is more, in both jurisdictions, the restriction to two parents limits the possibilities open for the legal recognition of collaborative co-parenting arrangements involving more than two parents.

Arguably, the intention behind the legislative provisions addressed in this section of the article is to put same-sex parenting on a similar footing to different-sex parenting. As Mr Justice Baker observed in the United Kingdom context, ‘[there] is an acknowledgement that alternative family forms without fathers are sufficient to meet a child’s need’ (Re G (A Minor); Re Z (A Minor) [2013] EWHC 134: [113]). While this is a welcome development, there is concern that legal progress could be easily jeopardized (Harding, 2015), particularly given the legal system continues to appear tempted to force father figures on families that women design and lead (Boyd, 2007). Although Smith (2013: 378) acknowledges this point, she also stresses that ‘excluding known donors from legal recognition through a system which recognizes only two parents validates and protects lesbian families but also reinforces the dyadic parenting norm based on heterosexual reproduction’. This approach may benefit parents who wish to form a (homo)nuclear family but excludes others who seek to engage in collaborative co-parenting (Surtees, 2011). As Leckey (2015: 1) highlights, ‘redrawing the lines of legal “family” might also further marginalize non-normative caring and kinship networks’. In summarizing the problem, Brown (2019) notes that while legal parenthood has broadened in scope to include the possibility of two female parents, this has occurred without adjusting the two-parent model of the conventional, heterosexual nuclear family on which the provisions are based. It is this very model that this article seeks to challenge.

Acquiring Parental Responsibility or Guardianship

The legislative provisions relating to legal parenthood described above need to be considered in the light of the separate legal concept of parental responsibility in the United Kingdom (in particular in England and Wales) and guardianship in New Zealand; currently, both may be of more utility in terms of collaborative co-parenting. In England and Wales, parental responsibility is defined in s. 3 of the Children Act 1989 as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’. In New Zealand, guardianship, which is governed by the Care of Children Act 2004, similarly emphasizes rights, duties, powers and responsibilities. As well as automatically becoming a legal parent in both jurisdictions, a birth mother also acquires parental responsibility for her child upon birth in England and Wales or guardianship in New Zealand.

In collaborative co-parenting situations involving a female couple in the United Kingdom, the mother’s female partner would acquire parental responsibility on birth if the mother’s partner was the child’s legal parent under HFEA 2008 and was either in a civil partnership with the mother at any time between conception and birth (Family Law Reform Act 1987, s. 1(3)(bb)), was registered as the child’s second parent on the birth certificate or had entered into a parental responsibility agreement with the mother (Children Act 1989, s. 4ZA). Similarly, in New Zealand, the female partner would acquire guardianship under the care of Children Act 2004 as the second legal parent, whereas the biological father/known donor would need to apply to the Family Court for additional guardianship.

Unlike legal parenthood, in the United Kingdom, it is possible for the court to make a child arrangements order in favour of more than two adults, including people who are not the child’s legal parents. Various adults are entitled to apply for a child arrangements order as a matter of right. These include the child’s parent, guardian or step-parent with parental responsibility (Children Act 1989, s. 10(4)); a spouse or civil partner where the child is treated as a child of the family; and someone with whom the child has lived for at least 3 years (Children Act 1989, s. 10(5)). Other people such as a mother’s female partner where conception occurred at home and who is not in a civil partnership with the mother must apply to the court for leave to apply for a child arrangements order, which can confer parental responsibility but not legal parenthood. The biological father may also be in this position if he is not considered to be a legal parent (for an example of this, see Re G (A Minor); Re Z (A Minor) [2013] EWHC 134).

Similarly, in New Zealand, other people can apply for additional guardianship, including, as already mentioned, a biological father/known donor. A second way known donors can mitigate the insecurity of their position is through developing a formal written agreement with the legal parents of a child about involvement prior to seeking a court order that reflects some or all of the conditions of the agreement under the Care of Children Act 2004.

Identifying and Selecting Participants

Lesbians and gay men constitute a hard-to-reach population because they belong to a socially stigmatized group. Developing a sample for this population is challenging, because there is no existing sampling frame to recruit from and much remains unknown about the population, including size and demographics (Matthews and Cramer, 2008; Weeks et al., 2001). Because random sampling was not an option, both studies were promoted through country-specific lesbian and gay media, lesbian and gay-targeted organizations, social groups and online mailing lists. Those wanting to know more about either study were typically part of interconnected networks; these were capitalized on through snowball sampling. Used to identify and select people who are part of such networks, snowball sampling is a particularly useful strategy for accessing hard-to-reach populations, as once the researcher has identified potential participants they can act as informants to recommend others (Fraenkel et al., 2015; Patton, 2015).

These recruitment strategies were largely successful. Six prospective and current collaborative co-parents across four families in the United Kingdom and another six such co-parents across three families in Canada participated in Bremner’s study. Participants were purposively selected to ensure a diverse range of collaborative co-parenting arrangements. In addition, the United Kingdom sample included five legal professionals and one health professional and the Canadian sample six legal professionals. These professionals, who had worked extensively with collaborative co-parenting families, were included on the basis that they allowed access to the experiences of a wider range of this particular family form.

Sixty adults participated in Surtees’ study across 21 lesbian known donor familial configurations at different stages of forming family. ² Initial recruitment focused on lesbians and gay men who had previously collaborated together in order to conceive children through known donor insemination or who were planning to conceive using this method. As recruitment proceeded, the inclusion criteria broadened to include a focus on heterosexual known donors, because it had become increasingly apparent that such donors’ concerns lay with their place, and the place of their partners, in children’s family lives, rather than their sexual identities per se. What mattered was the participants’ potential to provide insight into a wide range of social identity possibilities and roles for gay or heterosexual men as known donors for lesbians, and those of their partners, vis-à-vis the family lives of children, given they have no obvious place within kinship systems.

Collecting Data

As Taylor et al. (2016: 102) observe, ‘qualitative interviewing is flexible and dynamic’. Interview encounters, they continue, are directed towards uncovering participants’ experiences. To gain insight into the experience of collaborative co-parenting and the impact legal regulation has on this, Bremner conducted a total of 25 individual face-to-face or telephone interviews with family members and professionals (12 in the United Kingdom and 13 in Canada). The interviews were semi-structured, allowing for in-depth guided conversations (Cole and Knowles, 2001). Each interview was digitally recorded and transcribed shortly after they were held.

Surtees, on the other hand, chose to gather data by interviewing members of familial configurations in groupings of their choice. She conducted 26 face-to-face semi-structured interviews in total (10 group interviews, 11 couple interviews and 5 individual interviews). Her preferred approach to interviewing was the narrative interview, a particularly useful method for collecting stories about participant experiences that can accommodate holistic, chronological and long accounts (Bold, 2012; Elliott, 2005; Riessman, 2008). Like Bremner, Surtees also digitally recorded and transcribed her interviews.

In both studies, the rich, detailed data generated through interviewing reflected the accepted understanding in qualitative research that the well-managed interview can be a powerful tool (Gray, 2018).

Analysing Data

Frequently considered messy, qualitative analysis merges intuition, insight and intimate knowledge of the data (Taylor et al., 2016). Both Bremner and Surtees conducted a thematic analysis of their respective data sets generating codes drawn from their interview transcripts using Nvivo (QSR NUD*IST Vivo [nVivo], 2008), a qualitative data analysis software package. Relationships between the codes were subsequently established before being collated into broader themes.

Despite the methodological differences between the studies, the methodologically compatible data Bremner and Surtees obtained, and the similar codes and themes they identified, allowed for a coherent analysis and conclusion to emerge. Bringing the two studies together in this article allowed the authors to make comparisons between the lived experiences of collaborative co-parenting families across New Zealand and the United Kingdom, while simultaneously highlighting the points of similarity and difference in the allocation and regulation of legal parenthood and the mechanisms for acquiring parental responsibility and guardianship in their respective jurisdictions.

Ethical Considerations

Both studies were granted ethics approval from the relevant university ethics committees prior to the collection of data. ³ During the recruitment phase of the studies, participants received information sheets and were asked to sign consent forms. The information sheets reflected accepted ethical principles necessary for the protection of all parties in research involving humans. For example, the purpose, aims and nature of the research were outlined allowing participants to make informed decisions about whether to consent to participate or not. Participation was voluntary; this was also specified, as was the right of withdrawal. In addition, the conditions of confidentiality and anonymity were set out. Participants were promised that their identities and the information they provided would be kept confidential. They were assured that their real names or other identifying information would not be used in the studies or related publications and presentations and that all data would be securely stored.

Because the studies explored sensitive topics, the risks associated with these needed to be considered in advance as part of the ethics approval processes. Participants were provided with information about appropriate support services in the event that they wanted support as a result of their involvement. This did not prove necessary in either study.

The Families

For Betty and Eliza, a British couple, and Polly and Esther, who lived in New Zealand, future motherhood was important. Polly quipped their ‘how we met’ story was ‘the typical lesbian cliché’; ‘by date two, we said we wanted to have a family!’ Both couples planned to conceive using sperm from known donors and subsequently recruited donors prepared to participate in collaborative co-parenting families as involved fathers and third parents to their future children. At the time of interviewing, the couples’ plans were progressing apace. Insemination attempts were underway for Betty and Eliza, facilitated by Lenny, the single gay man they had recruited. ⁴ Meanwhile, Polly and Esther had a pregnancy well established in conjunction with Keane, who they met at a social event. ⁵ Like Lenny, Keane was a single gay man.

Collaborative co-parenting families like those formed by these couples and the men with whom they teamed up are not common. The scarcity of studies focused on such family models suggests they also lack recognition. Power et al. (2010) longitudinal study, which investigated family life for same-sex parents in New Zealand and Australia, concluded that contributing factors for this may be dominant social, cultural and institutional traditions that assume a child will have two (and only two) parents and a possible reluctance to engage with the practical, logistical and legal aspects that result when more than two parents are contributing to a child’s upbringing. However, these couples, along with the men, were willing to navigate the logistical and legal dimensions inherent in these models in a context where assumptions that a child will have only two parents continue to prevail.

Conversant with the legislation governing assisted reproductive procedures and parenthood in their respective countries, the adults across the two families were mindful that the law would not take as its starting point their family forms, within which collaborative co-parenting was considered key. For Betty, ‘the idea of co-parenting’ meant ‘all of us being equal, all of us being equally involved, all of us being a family’. Polly thought co-parenting required particular skills:

I think a lot of it is the ability to manage the complexities and ambiguities of different relationships. To step outside the traditional stereotypes: that parenting does not necessarily need to imply sexual intimacy, that the parenting alliance can look completely different.

Both families had concluded that a written agreement outlining their intentions would be prudent and had entered such agreements prior to insemination attempts. Betty, Eliza and Lenny’s written agreement confirmed that while Betty and Lenny would be the biological parents of any child they conceived, Betty and Eliza would be the legal parents of that child. They acknowledged the written agreement was very protective of the women’s role in terms of taking responsibility for the child and the ability to make decisions on his or her behalf. Despite this, Lenny trusted that things would work out for them all, although he acknowledged that some flexibility would be necessary. As he put it, ‘we are trying to create a family, really, and [we need] to be a bit flexible about it’.

Esther described her family’s written agreement as an ‘insurance policy’. Negotiated through their lawyers, it confirmed that the women intended to be the child’s legal parents and that Keane would be a third parent to him or her. It also confirmed that Keane would contribute to all aspects of his or her upbringing. Resonating with Luce’s (2010) notion of contracting kinship, these kinds of written agreements are not enforceable in New Zealand, although parties to them can seek formalization of key aspects through a court order, as mentioned earlier.

Esther felt her position as the intending non-birth mother was not particularly secure and this made her anxious. While Eliza did not specifically articulate a similar feeling, presumably she may have experienced something comparable. Either way, legal parenthood was a significant resource available to both these women and one that Esther, at any rate, hoped would help assuage her nervousness. The mechanism through which this would be achieved for them differed, however.

For Eliza, legal parenthood would automatically flow from her civil partnership with Betty (unless a lack of consent was demonstrated), consistent with the provisions in United Kingdom law already outlined. Lenny would not therefore have the option of being recognized as the second legal parent. Esther’s legal parenthood, on the other hand, would not be reliant on formalizing her couple relationship with Polly – although they had the option to enter a civil union following the passage of the Civil Union Act 2004 in New Zealand, ⁶ this was not something they had to do. Whether or not she should obtain legal parenthood in place of Keane was initially a subject of debate:

Esther was relieved this option was dropped. As Polly’s partner, and in line with the deeming rules under Part 2 of the Status of Children Amendment Act 2004, she expected to name herself as a parent, alongside Polly as the birth mother, when they registered the child’s birth. This option would enable her to formalize her social relationship to the child. Similar provisions for lesbian couples to secure joint legal parenthood in other countries have also been made (see, e.g. Hayman et al., 2013; NeJaime, 2016; Swennen and Croce, 2015).

Eliza and Esther’s ability to achieve legal parenthood status can be understood as a strategy that will rectify a perceived ‘imbalance’ between their positions as intending non-birth mothers and those of their partners. Lesbian non-birth mothers can feel uneasy about their status (Gabb, 2005); many are acutely aware they are not recognized as genuine parents in the public sphere or well supported (Brown and Perlesz, 2008; Hayman et al., 2013; Wojnar and Katzenmeyer, 2014). Achieving this status will also rectify a perceived ‘imbalance’ between their positions as intending non-birth mothers who will have no biological connection to their children and Keane and Lenny’s status as people who will have this connection. This is not insignificant in the face of assumptions that the men could be considered to be more important than them on the basis of biology (Nordqvist and Smart, 2014).

In any event, neither Keane nor Lenny will be a legal parent to their children. The deeming rules of the Status of Children Amendment Act 2004, Part 2 will prevent Keane from becoming a legal parent (there are some exceptions to this rule, but they do not apply in his case), ⁷ unless he can persuade Polly and Esther to allow him to be named a parent on the birth certificate in place of Esther. This was not a satisfactory option from Esther’s perspective. Likewise, Lenny will not be considered a parent for any purpose Under Part 2 of the HFEA 2008 by virtue of the fact that Eliza will automatically be recognized as the second legal parent.

Polly and Esther expected to provide day-to-day care of the child in their home following his or her birth, as well as being his or her legal parents and guardians. Keane was to enact non-residential fathering/parenting in ways prescribed through their written agreement. This was to be strengthened through his appointment as an additional guardian – a step intended to reinforce his position as a third parent by securing his legal authority over decision-making and day-to-day care of their child. Similarly, Betty, Eliza and Lenny expected Lenny would seek to obtain parental responsibility for their child. They also intended to have him named on a shared residence order. ⁸ This was reassuring for him. As he said, ‘that was kind of the compromise that if I’m not going to be the legal parent, I am taking that court order which sort of gives me that parental status’.

There was a strong sense from the interviews that each of the six adults within these two families understood their arrangements as an attempt to create a family that included all of them. For example, Betty pointed out Lenny ‘is very much part of our family now’. And, in a similar vein Polly said ‘we’re very clear that we will be mums and dad’. Despite this, legal recognition played an interesting role in their respective family dynamics. Although each of the adults professed the ideal of creating a family, for the women, this was very much predicated on the idea of firm preconception intentions. Lenny alone expressed a willingness to take things on faith and see how things developed, trusting that they would be able to navigate the future together in a mutually acceptable way. This tension between prior family planning and organic development as a family indicates the different ways these families can form and the different expectations that can exist.

Although the level of agreement that existed between the adults in both families was very high, it is possible that their intentions could change, particularly when considering that Betty, Eliza and Lenny were yet to conceive a child and Polly, Esther and Keane’s child was yet to be born. A number of studies draw attention to disparities between the expectations of lesbian couples and gay donors in relation to donor–child relationships and roles, despite agreements between all parties on this matter prior to the conception and birth of children (see, e.g. Dempsey, 2004, 2005, 2012; Riggs, 2008a, 2008b; Scholz and Riggs, 2013). ⁹ Lenny and Keane will be in the more vulnerable position if intentions change or disparities in expectations were to arise, because only the women will be the legal parents of their children and only they will appear on the birth certificates. Without legal parenthood or parental responsibility or guardianship, the men will have no rights, responsibilities or liabilities in respect of their children and the children will lose those that would otherwise stem from them. The interests of heterosexual couples utilizing donated gametes predominantly shape the protection of the donor from rights, responsibilities or liabilities. This is particularly significant for Lenny and Keane because their loss of rights, responsibilities or liabilities will be the case irrespective of their families’ plans to be jointly acknowledged as parents. As Polly said, ‘the law doesn’t protect the third parent – whoever is decided is the third parent’.

In Dempsey’s (2010) study, a non-cohabiting single lesbian and a single gay man who decide to have a child together typify the kinds of collaborative co-parenting arrangements possible in friendship contexts. According to Dempsey (2010: 1154), in such arrangements, ‘the conventional assumption is that biological motherhood and fatherhood are grounds for parental rights and responsibilities’. Although Betty, Eliza and Lenny, and Polly, Esther and Keane view themselves as setting up collaborative co-parenting arrangements, this is not done on the basis of a co-parenting agreement like the one Dempsey (2010) describes. The written agreements these families have protect the legal rights and responsibilities of the female couples while leaving the biological fathers legally vulnerable. While the intention is to remedy this to the extent possible following the birth of their children through additional guardianship for Keane and court orders for parental responsibility and shared residence for Lenny, the power very much remains in the hands of the female couples; the men are largely reliant on the willingness of the women to honour preconception plans. Despite the skewed nature of their written agreements in terms of legal rights and responsibilities, which makes them seem more like Dempsey’s (2010) social solidarity agreements, the actual parenting envisaged in them appears to fit more with an understanding of collaborative co-parenting. As their stories highlight, the current legal context in New Zealand and the United Kingdom is complex in its recognition of the partners of birth mothers in same-sex relationships as legal parents while persisting with the assumption that there can only be two legal parents. Despite the progressive nature of the law in both jurisdictions with respect to relationship and parenting recognition, rules determining parental status clearly fall short in these (and other) kinds of lesbian and gay collaborative co-parenting models of family. Potentially, the rules will also fall short for the increasing number of heterosexuals who are turning to such models (for more on this, see Jadva et al., 2015; Ravelingien et al., 2016).