The legal construction of same-sex collaborative co-parenting in the UK and Canada

Bremner, Phillip (2015) The legal construction of same-sex collaborative co-parenting in the UK and Canada. In: Centre for Research on Families and Relationships New Researchers Conference 2015, University of Edinburgh, 26th - 27th May 2015, Edinburgh.

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Abstract

Empirical studies have revealed that a significant minority of lesbian and gay couples and individuals parent in ways that are not reflected by the heteronormative understandings of the family that underpin legal recognition. A striking example of this is collaborative co-parenting, also referred to as poly-parenting, where a child is conceived through artificial reproduction and both biological parents (and potentially their same-sex partners) remain involved in the child’s life. These families, where parenting does not necessarily occur solely within the context of an intimate relationship, challenge Martha Fineman’s notion of the sexual family, which remains influential in family law in the UK and elsewhere. What is more, these families may involve more than two adults with potential parental claims in relation to the child, which presents a direct challenge to the current limitation to two parents in UK family law.

This paper discusses a small-scale qualitative interview study with same-sex parents, legal and other professionals in the UK and Canada in relation to their experiences of the legal framework surrounding family formation and recognition. The reason Canada was chosen as a comparator jurisdiction is that British Columbia has recently become the first jurisdiction to legislatively recognise multiple parents in the context of collaborative co-parenting. Therefore, the paper explores the advantages of dealing with this issue through legislation rather than the ad hoc case-by-case basis adopted in the UK. The paper will also consider the limitations of the legal reform models adopted in Canada and the UK in giving legal effect to the lived realities of this group of same-sex families. This will include discussion of the role that written agreements play in collaborative co-parenting arrangements, as well as the potential for recognising different sorts of parental figures in a child’s life through a more nuanced model of legal recognition.

One particularly prominent theme that has emerged in the academic discussion of collaborative co-parenting families is that parenting within them is remains a gendered phenomenon. Feminist scholars have highlighted the need to take into account the gendered nature of family law generally and the unequal distribution of caregiving in these families. The impact of gendered norms surrounding the family and the influence of fathers’ rights discourse is undoubtedly of central importance. However, an overlooked issue in this debate is the gendered nature of reproduction itself and how this impacts differently on legal recognition for lesbian and gay male parents. This raises issues surrounding the ability to be registered on the child’s birth certificate, which is open to female couples that conceive through artificial insemination, compared to the requirement to obtain a court order for male couple who conceive with the involvement of a surrogate.

Legal recognition can be an important aspect of family life, particularly in relation to same-sex families. Therefore, in exploring the issues outlined above, this paper hopes to contribute to the debate surrounding the legal response to these novel and potentially transformative collaborative co-parenting arrangements.

Item Type: Conference or Workshop Item (Paper)
Schools and Departments: School of Law, Politics and Sociology > Law
Subjects: H Social Sciences > HQ The Family. Marriage. Women
K Law
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Depositing User: Phillip Bremner
Date Deposited: 28 May 2015 10:30
Last Modified: 28 May 2015 10:30
URI: http://sro.sussex.ac.uk/id/eprint/54165
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