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Birth certificates have been a hot topic in the UK in recent weeks. There has been much controversy, confusion and misunderstanding, aptly shown by Caroline Gammell’s article in The Daily Telegraph newspaper and Colin Fernandez’s article in the Daily Mail on 19 April incorrectly hailing the advent of the first lesbian couple to both be named as parents on their baby daughter’s birth certificate, born 31 March this year.
Lesbian couples have not in fact had to wait until the beginning of April this year to take advantage of new laws allowing them both to be named as the parents on their child’s birth certificate. Legally, they could both be named as the parents on the birth certificate of any child they conceived on or after 6 April 2009, when the new female parenthood provisions of the Human Fertilisation and Embryology (HFE) Act 2008 were implemented. In practice, as from September 2009 lesbian couples could be named on their child’s birth certificate following a viable delivery, albeit at that stage heavily premature. Natalie Woods and Betty Knowles were not therefore the first in the UK to take advantage of this change in the law (just the first to speak to the press) and we have many clients who have preceded them.
This misunderstanding is undoubtedly the result of increasingly complex laws on parentage and the recent press coverage of the final staged implementation of the HFE Act 2008 on April 6 this year, allowing same sex couples (most notably two men) for the first time to be named as the parents on their surrogate-born child’s birth certificate following the grant of a Parental Order which then triggers the re-issue of their child’s birth certificate.
The Daily Telegraph article went on to quote Baroness Deech, The Chairman of the Bar Standards Board, saying: ‘This is not a moral issue; it is about disguising true facts, and it is about confusing biological parenthood, legal and social parenthood.’ The article further quoted Josephine Quintavalle, from Comment on Reproductive Ethics (CORE), saying that ‘birth certificates should reflect how a baby is generated’ and ‘in a culture that is obsessed with genetics, it is strange that when it comes to birth certificates we are prepared to forget all that?’ and ‘as much as you try to play around with the terminology, the biology reflects what has happened and one day the child will ask about their father.’
Birth certificates are in fact a legal document recording the legal parentage of a child at birth. Birth registration procedures are governed by law, not biology, and birth certificates have never been in practice a definite record of a child’s biological parents. In non-assisted reproduction cases, a married mother’s husband is presumed to be the father and recorded as such on the child’s birth certificate unless this is rebutted by DNA (deoxyribonucleic acid) evidence of another’s paternity. If the child’s mother is unmarried, she can choose whether to name the father or to leave the father’s details blank.
Since the introduction of the HFE Act 1990, the UK’s first legislation to regulate parentage following assisted reproduction treatment and the precursor of the HFE Act 2008, men and women have also been routinely named as parents on the birth certificates of their children conceived with donor eggs or sperm. Birth certificates of surrogate-born children also continue to record the surrogate mother as the legal mother at birth and her husband as the child’s legal father, even when the intended parents are the biological parents and which then requires them to obtain a post-birth Parental Order to re-assign legal parentage (which can only be done with the surrogate’s consent) and trigger the re-issue of the birth certificate.
With the growth of alternative family structures and recent changes in the law, increasing demand for assisted reproduction treatment using donor gametes and more people building their families through surrogacy, birth certificates will increasingly reflect legal parentage rather than biology. Whilst birth certificates were in the past perceived as representing a child’s biological parenthood, this has not necessarily been the case. What has changed over the last year is the stark realisation amongst some campaigning groups that birth certificates can now in law name a wider range of people as parents on the face of a child’s birth certificate, most notably same sex parents, challenging traditional values and perceptions of family life.
More information on the Gamble and Ghevaert website about birth certificates and surrogacy, birth certificates and donor conception and the new rights for same sex parents