The Human Fertilisation and Embryology Act (2008) and the Tenacity of the Sexual Family Form¹

“No Father Required”? The Welfare Assessment in the Human Fertilisation and Embryology Act 2008

“…It is also likely that clinics have not yet fully understood that the 2008 Act imposes no requirement that people seeking treatment together should be in a traditional 'couple' relationship and it is possible that if two friends seek treatment together, aiming both to be recognised as legal parents, that this non-traditional family form might raise welfare concerns in the minds of some clinicians (McCandless and Sheldon 2010). On this point it is noteworthy that the Eighth Code of Practice uses the term 'partner' throughout to refer to the person who is seeking treatment together with the future mother and who will be recognised as the future child's father or female parent, even though there is no legal requirement that the two be 'partners' in the sense of being in a romantic/sexually intimate relationship.…”

“…The crucial difference is, however, that the reforms to the status provisions are lengthy, highly complex and embedded in very technical language. When eventually reported in the popular media these changes were likewise cast as "[a]nother blow to fatherhood" (MacRae 2009) yet, unlike the welfare clause changes, they were to pass largely under the radar of the popular media until some months after the legislation was passed (McCandless and Sheldon 2010).…”

“…The deletion of the "need for a father" was widely depicted in parts of the media as an attack on fatherhood, signalling that women have won the 'right' to have children without fathers, with frequent allusions to this as heralding the redundancy of men and traditional male roles in modern Britain (Laurence 2004;Donnelly 2007;Henderson et al 2008). Likewise, when the reform of the parenthood provisions, which allow a "female parent" to be registered as a second parent on a birth certificate instead of a "father" came to the media's attention, they were reported in a similarly confrontational tone (MacRae 2009; see further McCandless and Sheldon 2010), while the potential reproductive use of 'artificial sperm' (created using stem cells taken from elsewhere in the body) was discussed in the media as a means of making possible reproduction without a man; despite the primary goal of such developments being the treatment of male infertility (Cook 2009).…”

“…But what the JC's recommendation ignores is that children conceived to single mothers via IVF form an unrepresentative sample, as typically such women will have needed to fund their own treatment and can therefore be safely assumed, in the vast majority of cases, not to be struggling to raise children in the levels of poverty faced by many single mothers. The recommendation also illustrates the tenacity of the sexual family form, here evidenced through the reassertion of the benefits of the two parent family model, in influencing reform in this area (McCandless and Sheldon 2010). Ultimately, however, the Government did not follow the JC's recommendation, reasoning that it would add nothing to the statutory mandate requiring the welfare of the child to be taken into account before provision of treatment (Department of Health 2007, para 57).…”

Parents, Children and the Porous Boundaries of the Sexual Family in Law and Popular Culture

“…The legislation of 2008 also maintains the existing prohibition (under the Marriage Act 1949) on two people who are incapable of a lawful sexual relationship from both being recognised as legal parents together. McCandless & Sheldon (2010) build on Fineman's scepticism to argue that the current law represents an 'assimilation to (and extension of) this marriage ideal' (p. 189) and shows that 'the sexual family model continues here to frame our understanding in so far as the couple at the heart of the family remains a sexual one ' (p. 198). Although Fineman's observation about the cultural priority of the sexual, conjugal family finds support amongst commentators such as McCandless & Sheldon, her pessimism about the consequences of this perspective is more readily contested.…”