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Should paternity be linked to sexual intercourse?

Should paternity be linked to sexual intercourse?. Michael Eburn School of Law UNE. Introduction. This paper will look at paternity and the misplaced focus the law places on sex to determine who has paternal rights and responsibilities.

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Should paternity be linked to sexual intercourse?

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  1. Should paternity be linked to sexual intercourse? Michael Eburn School of Law UNE

  2. Introduction • This paper will look at paternity and the misplaced focus the law places on sex to determine who has paternal rights and responsibilities. • There are two reasonable options (if a choice is needed) – biological or social. • But the law uses sex. ALTA Conference, Hamilton NZ

  3. Paternity and family law • ‘… the natural meaning of the word [parent] of a child is the biological mother or father of the child and not a person who stands in loco parentis.’ (Tobin v Tobin (1999) 24 Fam LR 635). • Also – adopting parent. • A man who consents to AI procedure. ALTA Conference, Hamilton NZ

  4. State legislation • Defines who is a father, and who is not. • Sperm donor is not the father. • Where a woman has a male partner (or female in WA and NT) who consents to AI, that partner is a parent. ALTA Conference, Hamilton NZ

  5. Assumptions • Every child needs a father. • A family is the nuclear family – mum, dad, kids (and the dog?) • Anything else is a departure from the norm or best. ALTA Conference, Hamilton NZ

  6. Artificial insemination • Legislative schemes assume child will be born into nuclear family. • Sperm donor will be anonymous and will have no involvement with the child. • BUT not everyone behaves as the legislators expect them to. ALTA Conference, Hamilton NZ

  7. Re Patrick • Donor was known. • Donor wanted to be involved in child’s life. • Not so unusual. ALTA Conference, Hamilton NZ

  8. The choice • Either: Biology or Social relationshipsdefine ‘father’. • In fact the question is ‘did they have sex?’ • Consider the story of Neville? ALTA Conference, Hamilton NZ

  9. Neville • His sister’s partner Mary, and child A. • An anonymous donation and child B. • A ‘one night stand’ and child C. • His sister’s partner again, and child D. • Biological – ‘father’ of all 4. • Social – uncle to A and D. • Legal – father to A and C. ALTA Conference, Hamilton NZ

  10. All biological fathers are ‘father’. • Recognise children’s interest in biological history. • Children’s interests are paramount. • Recognise need to take responsibility for reproductive decisions. • Sperm donors are not protected from responsibility. ALTA Conference, Hamilton NZ

  11. Social relationships • Give effect to people’s choices –– the promise to parent, or not. • Recognise the reality of children’s lives. • Men and women can contract out of relationships. • Sperm donors can’t insist on families without responsibility. ALTA Conference, Hamilton NZ

  12. Do we need to make a choice? • Recognise that a child can have more than two parents. • Roles and responsibilities can be determined on a case by case basis. • Any person who obtains a parenting order is also liable to pay child support. ALTA Conference, Hamilton NZ

  13. Conclusion • If we have to make a choice as to who is the father, it should be biological or social. • It is in fact whether the parents had sex. • Heterosexual, medical model. ALTA Conference, Hamilton NZ

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