Same-sex parenting, birth certificates and court orders: access to justice in the UK and Canada

Bremner, Phillip (2015) Same-sex parenting, birth certificates and court orders: access to justice in the UK and Canada. In: EU Litigious Love Project Final Conference, University of Bergamo, 22nd - 23rd May 2015, University of Bergamo.

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Abstract

Access to justice can mean a number of different things for same-sex parents. It can mean being automatically recognised as a legal parent on your child’s birth certificate. It can also mean obtaining a court order confirming you are a legal parent, have the right to make decisions about your child’s upbringing and are able to live and spend time with your child. The availability of these different elements of access to justice varies from jurisdiction to jurisdiction. Many jurisdictions have not enacted legislation relating to same-sex parenting. As a result, individuals’ levels of access to justice remain unclear until the issue has been judicially determined. The result of this piecemeal evolution is a patchwork of rules, which inadequately accommodates the diverse interests of this heterogeneous group. This is the legal background against which mediation, and court-based dispute resolution, operate.

This paper focuses on same-sex parenting following assisted reproduction where there are multiple adults involved in a child’s life (sometimes referred to as poly-parenting) . Same-sex parenting following assisted reproduction has been addressed through recent legislative reforms in the UK and a number of jurisdictions in Canada. There is also a growing body of case law in both Canada and the UK concerning the issue of how female couples and known biological fathers should be recognised in terms of parenting.

Since the adoption of the UK Human Fertilisation and Embryology Act 2008, it has been possible for two female parents to appear on a child’s birth certificate following birth and for two male parents to be registered following a court parental order. The UK parliament has not, however, gone so far as to allow more than two parents to be legally recognised. This contrasts with the approach in British Columbia, which allows three parents to be registered on the birth certificate in cases of same-sex parenting involving assisted reproduction. In both Canada and the UK, however, courts have struggled to balance the interests of those involved in these poly-parenting arrangements with varying degrees of success.

This paper attempts to explore the access to justice issues that these diverging legislative and judicial approaches raise: Why are we reluctant to record a child as having two mothers or two fathers? Why do we limit the number of parents a child can have? Why do some parents acquire automatic status in relation to children while others require a court order? This is relevant in both a domestic and international setting, where a court declaration of parentage in addition to the birth certificate may be required before recognising the parent-child relationships in same-sex families when crossing national borders. The aim of this paper is to stimulate further discussion around these issues and how they relate to access to justice more generally for LGBTI people.

Item Type: Conference or Workshop Item (Paper)
Keywords: LGBTI; Access to Justice; Same-Sex Parenting
Schools and Departments: School of Law, Politics and Sociology > Law
Subjects: K Law
K Law > KD Law of the United Kingdom and Ireland > KD0051 England and Wales
K Law > KE Law of Canada
Related URLs:
Depositing User: Phillip Bremner
Date Deposited: 28 May 2015 10:27
Last Modified: 28 May 2015 10:27
URI: http://sro.sussex.ac.uk/id/eprint/54164
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