Exploring the Idea of a Right to a Child

Transcription

1 Exploring the Idea of a Right to a Child Craig Lind Sussex Law School University of Sussex Brighton UK 17 th Family Law Conference Cape Town 14 March 2014

2 Setting the Scene in the UK Having Children Traditional conception Medically assisted conception Surrogacy Raising Children Parental Responsibility (not Rights) Welfare and children s rights

3 Setting the Scene: Law in the UK Having Children The Common Law and Parental Presumptions Married and unmarried parents The facts or the truth of paternity (and even sometimes maternity) in the old days Assisted Conception The (gene free) parental possibilities Mothers, gestation and donor gametes Fathers and donors Following the presumption pattern of the common law The rules for the married and the unmarried

4 Setting the Scene: Law in the UK Having Children Surrogacy Unenforceable agreements Mothers have power No Commercial Surrogacy But when Surrogacy works Parental orders (the need for gamete(s)) Adoption International Surrogacy?

5 Setting the Scene: Law in the UK Raising Children Parental Status and Parental Responsibility Married Parents have PR Unmarried parents can have it: Birth registration (by agreement between parents) Formal agreement Court order Non-parents can have it (or incidents of it) Parents can apply for orders regulating PR Each can with limited exceptions exercise PR exclusively

6 Rights and Children Rights in Children To be a parent To care for (and control?) children Rights of Children To have parents To identity The significance of genes Ties of kinship

7 Framing Rights The traditional right to a child Framed as a negative liberty The right to a child in the era of assisted conception Positive rights Some reflections on the nature of rights

8 Hohfeld s classification of rights Privilege I am free to do; no one can place hurdles in my way But no-one has a duty to enable me to Claim (Right) I can create a claim (by, for example, contract) Someone must meet my claim (there is a correlative duty)

9 Hohfeld s classification of rights Power A state supported claim There is a liability to provide for my right Immunity Like a privilege except that not even the state can prevent me from exercising my right

10 Hohfeld s classification of rights the term rights tends to be used indiscriminately to cover what in a given case may be a privilege, a power, or an immunity, rather than a right in the strictest sense. Hohfeld Some Fundamental Legal Conceptions as Applied in Judicial Reasoning 1913 Yale Law Journal 16

11 Reflections on More Ideas About Rights Wills and Interest Theories of Rights Autonomy, choice and what s good for me Rule and Rights Competition between rights, and their weight The Importance of Rights Discourse The transformative power of rights

12 Framing Rights for Assisted Conception Before Technology Right as privilege or immunity After Technology The feasibility of a complex matrix of rights

13 Creating a matrix of rights Who s rights? All the adults Would be parents Donors The child/children Identity kinship The professionals involved

14 Creating a matrix of rights Considerations The importance of making medical progress The Desire to parent The importance of genetics: Identity and the truth of parenthood

15 Creating a matrix of rights Considerations Linking children with kinship groups Relative power creation Vulnerability and weakness must be addressed in the framing of rights Childhood Gender Framing professional practice

16 Conclusion Detailed rights will be contingent rights The nature of each right will be different Legislation is the best mechanism for creating a detailed matrix of rights: Difficult, individual facts will create bad law