The Role of Rights and Utility in Instituting a Child’s Right to Know Her Genetic History

Abstract

This article examines recent developments in family law which are concerned with the child's right to know her genetic history. It specifically investigates three areas. First, the Child Support (Pensions and Social Security) Act 2000 (CPSSA). Second, an unusual case concerning IVF at a licensed clinic where a decision failed to be made about parental responsibility (Re D [2001]; Re R [2001]). Finally, the recent Department of Health (2002) consultation exercise on donor anonymity. Drawing upon Parker's (1992) theoretical discussion about the significance of rights and utility to family law, the article will show that although there is evidence of a child's right to know in private familial disputes, this right is not approached consistently across family law. In respect of the government's recent consultation paper on donor anonymity, it will be argued that the child's right to know is subordinated to a utility approach. The article will recommend that the government should take the radical step of reforming law on donor anonymity to allow donor children the right to know their genetic progenitor.

Biologising Paternity, Moralising Maternity: The Construction of Parenthood in the Determination of Paternity Through the Courts in Portugal

“…7 The state's obligation to initiate a paternity investigation has been justified within the dominant juridical doctrine as necessary in order to protect the essential rights of the child whose paternity is not legally determined, such as the rights to ''personal identity'' and ''the development of personality'', 8 generally seen as associated with the ''right to paternity'' (Pinto 1995(Pinto , 2004. The identity of an individual is thus reconfigured according to biological affiliation, a form of symbolical domination which has resulted in the emergence of new rights, such as the ''right to genetic information'' (Eriksson and Saldeen 1993;Wallbank 2004). One of the judges interviewed clearly stated the privileging of biological paternity by the Portuguese judicial system: ''There are no human rights that rise above the determination of paternity, there aren't.…”

“…16 Yet the child's right to know implicates the right of others, i.e. in some instances the mother's conflicting right to privacy 17 (Wallbank 2004). Facts that are in no way relevant to the case in question are brought up in the court room, namely those that 14 According to article 204 of the Minors Tutelary Organisation and articles 1795 and following of the Civil Code, the so-called ''legal period of conception'' corresponds to the first 120 days out of the 300 that preceded the minor's birth.…”

“…At the other end of the spectrum, however, there is the possibility that the parent with custody (generally the mother) does not want the recognition or determination of paternity, because the child was born as a result of a transient or coercive relationship. The present UK law on parental responsibility, for example, protects women who are 'victims' of such circumstances by allowing the mother, in effect, to veto parental responsibility for an unmarried father, unless he can persuade a court to override her objections; although recent changes to UK law by way of the Child Support (Pensions and Social Security) Act 2000 allow courts to authorise blood testing of a child when the parent with custody refuses consent, but the court considers it to be in the child's best interest (Wallbank 2004).…”

The Role of Sexual Partnership in UK Family Law

“…It would seem, therefore, that there is considerably less contemporary concern about a gamete donor threatening the security of the child's family unit. While this has clearly been influenced by discourses relating to the significance of so-called 'genetic identity' (for a critical exploration of such, see Fortin 2009;McCandless 2011;Smart 2009;Wallbank 2004), we might also want to suggest that it reflects a sense of confidence in the security of the parental ties formed by law, at least from those charged with making the law (on the continuing sense of insecurity felt by parents with donor-conceived children, see Nordqvist and Smart 2011;and Gurnham, this volume).…”

Enforcing the Child's Right to Know Her Origins: Contrasting Approaches Under the Convention on the Rights of the Child and the European Convention on Human Rights

“…40 Gradually, under European pressure and following the reception of the Human Rights Act (1998) (see eg, Herring, 1999 ; Frith, 2001 ). Since then the law has been changed and, according to the new regulations entered into force in 2005, the child's right has to be protected and weighed against the donor's interest (see Almack, 2006 ;Wallbank, 2004 ). 41 In sum, the British approach to the child's right to know has now turned into a non-discriminatory and more balanced one, that duly respects the inner core of all competing rights.…”