Bill on Lesbian Parenthood in the Dutch Senate
The legal position of children born into lesbian relationships after conception with donor sperm subject of debate in the Dutch senate: will their right to equal treatment prevail?
I was invited as one of four legal experts by the Senate of the Dutch Parliament to the session on 18 June 2013 to present my view on the Bill on Lesbian Parenthood that has been accepted by the House of Representatives and is now under the close scrutiny of the Senate. The Bill seeks to regulate the legal parental status of the birth mother’s female partner in more or less the same manner as Dutch parentage law regulates the legal status of fathers in cases of artificial insemination with donor sperm. The current Bill seeks to regulate the female partner’s parenthood as follows: if a child is born into a female same-sex marriage, both women will become legal parents automatically, provided insemination was carried out by a professional and the sperm used came from a donor unknown to the mothers. Identifying information about the sperm donor is stored in a donor registry, to which the child has access too once it reaches the age of 16. If the women are not married or have used sperm from a known donor or have used sperm from an anonymous donor (for instance from abroad), the female partner will be given the opportunity to recognise the child with the birth mother’s consent.
Male and female life partners
In the Senate there are concerns about what some members consider to be a substantial deviation from the fundament of Dutch parentage law: legal parenthood is based on biology. I have argued that Dutch parentage law as it is today cannot be said to be solely based on biology. The prime example is the male life partner who consents to an act that may lead to the conception of a child by his female partner. This male life partner is not a biological father, but his parental status is very similar to that of a biological father. If he is married to the mother he will become a legal parent, if unmarried he may recognise the child with the mother’s consent and if he is unwilling to recognise the child, his legal parenthood can be established against his will. The male life partner’s legal parenthood is not based on biology but on his consent. This will also be the basis of the female life partner’s parenthood if the Bill is accepted by the Senate.
Equal treatment of children
However, I think one of the most important arguments for granting female partners and male partners in these cases the same legal status, comes from the right of children to have equal treatment. Consider the following example in Dutch parentage law as is today: two married couples conceive a child with the help of donor sperm, one of the couples is different-sex, the other is same-sex. The child born into the different-sex marriage will automatically have two legal parents at birth, the child in the same-sex marriage will only have one legal parent at birth (the other parent will have to adopt). It is very difficult to find fundamental arguments that may justify the difference in treatment between these two children. The argument brought forward that the legal parenthood for the father is at least in line with the fiction of parentage law that a legal parent is a biological parent, does not convince me. Both children are entitled to an optimal legal status within the family that raises them. On the one hand this concerns the legal status of the parents, and on the other their right to be able to obtain information about their biological origins.