LGBT History Month: Reflections on Changing Frameworks for LGBT+ Families (Part one)
Section 28, Adoption and IVF
LGBT+ History Month provides a time to reflect on progress made in our recent history and change that still needs to happen. Here is a brief look at some of the social and legislative changes of the past few decades which have affected LGBT+ families, particularly lesbian and gay parents.
In 1988 Margaret Thatcher amended the Local Government Act to ‘prohibit the teaching in maintained schools of homosexuality as a pretended family relationship.’ Section 28, as it became known, and the phrase ‘pretended family relationship’ proved to be insidiously damaging, playing into existing slurs and fears about homosexuality. Its wording reduced gay relationships not just to ‘other’ but to make-believe, continuing the denial of homosexuality which has been part of the erasure of LGBT+ people for centuries. It is understandable that during the end of the 20th and start of the 21st Centuries gay people looked to queer spaces, in clubs and then online, to find alternative families when faced with the message that the family was not a legally-supported structure for them.
In a video on the Coram adoption website, an adoptive father recalls that when he came out at university, a friend’s reaction was, ‘it’s such a shame that you will never be a parent.’ This sentiment will be familiar to many gay people, and was perpetuated by Section 28 until it was repealed in 2003. Same-sex couples became eligible to adopt with the Adoption and Children Act 2002 which came into force in 2005. Research showed that initially uptake was slow and same-sex adopters were often subject to additional assessment criteria by social workers. Already that has changed significantly and according to the Department of Education, one in seven adoptions in England in 2018-2019 were by LGBT adopters.
The legal concept of parenthood altered dramatically when Louise Brown, the first baby conceived through assisted reproduction, was born in 1978. Since then more than 300,000 babies have been born through IVF in the UK and over 8 million worldwide. The introduction of IVF brought forward many legal and ethical concerns. For family lawyers considering the legal definition of parenthood a new situation presented itself in that different components of parenthood – the genetic and the social – could for the first time be separated, having always previously been combined in the mother. Now a woman who donated her gametes might not be the same woman who was pregnant with the child and a third woman altogether could raise the child. Who would be mother?
A number of cases arose in which family lawyers and judges, such as Lady Hale in re G, examined the nature of parenthood and identified component parts in the gestational, biological and social or psychological. Some gay and lesbian parents will have a social component of parenthood, but not a genetic one. This is not a new societal phenomenon considering the precedents of non-genetic parental relationships in guardians, step-parents and adoptive parents. On the other hand, despite having a genetic link, an anonymous sperm donor will not usually be the legally recognised father of the child. The advent of IVF prompted radical rethinking about legal parenthood first with The Human Fertilisation and Embryology Act (HFEA) 1990 and then the HFEA 2008.
When the HFEA 2008 was passing through Parliament there was some debate about the proposed amendment of the provision in HFEA 1990 for a clinician to consider ‘the child’s need for a father’ when offering fertility services. Those opposed to removing this provision argued it was contrary to the ‘paramount consideration of the welfare of the child’ which lies at the heart of the Children Act 1989, a landmark act in children’s rights and family law. However, for some lesbian parents, the requirement for consideration of a child’s need for a father would by definition undermine their parental status. It was finally agreed that substituting ‘need for supportive parenting’ for ‘need for a father’ would not be detrimental to the child, and is one of the milestone steps of the HFEA 2008 in affording parental rights to both women in a lesbian relationship. The HFEA 2008 provides that the female civil partner or wife of a mother who becomes pregnant by assisted reproduction will automatically be the ‘second female parent’ (but not, legally, the second mother as she has not carried the child) according her parental status equal to that of a male civil partner or husband.
In part two I will look at the influence of the marital structure on parenthood and potential areas for change around surrogacy, alternative parenting structures and the Gender Recognition Act.