Tuesday 18 October 2016

The Politics of Birth Certificates

Should birth certificates include details of genetic and gestational parentage? I argue yes. 

In the blog below, written after a fascinating and, at times, difficult and moving panel discussion I attended last night about possible legal reforms to birth certificates in the UK, I argue that a child's "right to know their parents," enshrined in Article 7 of the UN Convention on the Rights of the Child, trumps parental interests in preserving the privacy of their child's conception. As a result, I suggest that we should state mandate disclosure of genetic and gestational parentage to the child via compulsory biological information on their birth certificate. I recognise that such mandatory state disclosure might seem heavy-handed to some, and of course there are legitimate concerns about what the state could do with such information. But the alternative – denying all children the equal right to know who are their genetic and gestational parents – seems worse. Have a read of my blog, if you have a moment, and let me know your thoughts!


Last night, I attended a fascinating and, at times, difficult and moving panel discussion about possible legal reforms to birth certificates in the UK. Organised by the Progress Educational Trust at the Institute for Child Health in London, the event was prompted by the Law Commission's suggestion that it might consider birth registration and birth certificates as part of its next law reform project.  

The discussion first explored the broad question of the purpose of birth certificates. It then homed in on more specific questions about the impact of assisted conception and changing family forms on birth registration. Dr Julie McCandless, a legal scholar at LSE, began by highlighting “the multiple, and sometimes competing and contradictory understandings that people have of the purpose of birth registration.” She asked: "Does it record a person? An event? Legal relationships? Is it meant as a permanent record or merely as a snapshot of a particular moment in time?" Sarah Norcross, Director of the PET, asked whether birth certificates are for the state’s benefit – to enable it to monitor fertility rates, predict population growth, and plan pension provisions – while panel chair Professor Peter Braude asked whether they are instead for the individual’s benefit – to enable them to access public services, like healthcare and education, that are contingent on proving age and nationality.

These are all important questions. And certainly, as McCandless argues, “These questions need to be addressed if law reform in this area is to be principled and forward looking, rather than merely piecemeal and reactionary.”

But perhaps as important – and certainly more difficult, as evidenced by the tense exchanges that emerged during the Q&A last night – is the question of whether birth certificates should detail only a child’s legal parents or if they should also provide information on that child’s biological backstory. Specifically, should birth certificates detail a person’s ‘journey of conception and gestation’ by including information about their genetic parents (egg and/or sperm donors) and gestational parents (surrogates)? This is not easy to answer, and it raised strong emotions amongst panelists and audience members alike.

Some panelists argued that conception and gestation information is private, and that parents should not be forced to disclose personal details about their child’s conception to either the state (via a public registration document) or to their children – unless and until they are ready and willing to do so. As panelist Kate Litwinczuk, herself donor-conceived, put it, “Openness and honesty are crucial. But smashing this information onto a birth certificate might scare people. It could be used as a way to threaten people into telling their children. That should happen when within yourself, as a parent, you’ve made peace with it.” Craig Reisser, speaking in his capacity as a father of two donor-conceived children, concurred. “The details of conception are a private family matter,” he said, “not a matter for the public record or that a parent or child should have to show to a passport officer.” US attorney Steven Snyder took a similar stance. He agreed that “family secrets are destructive” and that “those who participate in third party reproduction should be open and honest.” But the question, for him, was whether such disclosures should be mandated by the state and/or via the birth certification process. In his view, such forced disclosure could give rise to litigation regarding issues like inheritance. Consequently, he concluded, “All parties should disclose, while ensuring that parties are insulated from unintended legal consequences. Encourage disclosure, don’t state mandate it.”

Others disagreed with this approach. Dr Marilyn Crawshaw, Chair of the British Association of Social Workers’ Project Group on Assisted Reproduction, countered, “Human rights of donor-conceived and surrogate born children should be paramount, trumping parents. Knowing your identity and parents should apply to genetic parents, gestational parents, legal parents and those raising you. As citizens, we have a right for the state to facilitate information about us.” Two donor-conceived audience members agreed. They spoke movingly about the detrimental effects on an individual’s sense of self and identity of having conception information withheld from them, and from donor-conceived children in general, until early or late adulthood. “It is not enough to leave it to the goodwill of parents because it doesn’t always happen. Donor conceived people want to know,” said one. “But what is the purpose of knowing?” countered a panelist. “So you can know your genetic code? So you can prevent or cure disease? So you can be part of your donor’s family?” “Because a donor-conceived person has a right to know, and doesn’t have to justify that with a reason,” the audience member answered emphatically.

There was an evident and uncomfortable power dynamic at play during this exchange: The intended parent, atop the podium, fully aware of all the information concerning his children’s conception, arguing for his right to control the flow of that information; the donor-conceived child-now-adult, sitting below in the audience, insisting on his right to know, whatever his legal parents’ preferences, but ultimately powerless to access such personal information.

Over the course of their discussion, I became increasingly convinced of the paramount importance of a child’s right to know, of the parents’ responsibility to disclose – of course, in age-appropriate language, and at a time when the child is able to comprehend and process the information – and, in the absence of that voluntary parental disclosure, of the state’s duty to provide the information. As numerous contributors pointed out, the child’s right to know is enshrined in the UN Convention on the Rights of the Child’s Article 7, which states “All children have the right to a legally registered name, officially recognised by the government. Children have the right to a nationality (to belong to a country). Children also have the right to know and, as far as possible, to be cared for by their parents” (my emphasis). By contrast, during the evening, I was not pointed to an equally weighty, universally-applicable right to privacy of either the intended, genetic or gestational parents. Is there one? Consequently, framing the issue as one of merely “competing interests,” as Snyder did, ignores the primacy of the child’s right in Article 7. Meanwhile, framing it as a “balance of rights” issue (of parents, children, and other third parties involved), as Reisser did, does not seem backed-up by competing equivalent parental rights. For me, then, the child’s right to know trumps mere parental interests, whether those are the interests of the legal, intended, genetic and/or gestational parents.

Plus, as was pointed out, voluntary disclosure cannot guarantee openness and honesty. Some parents may never be ready to disclose. Some may fear alienating their children, of creating emotional distance between them and their children, or of enabling potentially rival parents to enter the picture. Others may be concerned about their children’s status in, or acceptance by, a particular community, perhaps especially a religious one with fixed ideas about kinship and family ties. Some parents may want to disclose but not have the words to express the complexity of their emotions around the issue. What if some parents are never ready? What if they die without disclosing, taking this family secret with them to the grave? Is that fair on the child?

My sense is that it is not fair on the child. And so, perhaps along with the other pains of assisted reproduction – invasive testing, financial costs, the emotional rollercoaster of pregnancy and pregnancy loss – will, sadly, have to come another pain for the intended parents: mandatory disclosure to the child via compulsory biological information on their birth certificate. Such mandatory state disclosure might seem heavy-handed to some, and of course there are legitimate concerns about what the state could do with such information. But the alternative – denying all children the equal right to know who are their genetic and gestational parents – seems worse.

The next questions are about application and enforcement: Should there be an additional long-form registration form with a mark on the first, shorter form to direct donor-conceived children towards their biological backstory? My sense is not. Such a mark could be stigmatizing, implying that this kind of information is shameful or abnormal and therefore ought to be hidden away from public view in a long-form version. Also, an individual would have to know what the mark signified, rendering the information inaccessible. Instead, I would suggest additional boxes be inserted on ALL birth certificates to include information about genetic and gestational parents, as well as other co-parents. With increasing rates of assisted conception and changing family forms, this would soon be normalized. Those engaging in transnational surrogacy or sourcing genetic material from abroad should be similarly compelled to detail their child’s genetic and gestational parentage on their birth certificate when returning and registering in the UK. Going abroad should not be seen or used as a way to avoid disclosure, thereby violating a child’s right to know.

The event’s hashtag was #petrecord 

Sunday 9 October 2016

Join us at Court!

It may be getting colder outside but things here at the Equal Civil Partnerships Campaign are hotting up. In less than a month, my partner Charles Keidan and I take our case to the Court of Appeal! 

We would be honoured if you could join us outside the Court of Appeal in London as the hearing begins on Wednesday 2nd November. Let’s celebrate our shared cause together and show judges and policymakers alike how much this means to us all. 

We’ll be gathering outside the court at 9.00am for breakfast and photos, complete with lots of giant cut-out hearts! You can sign up here or just turn up on the day. The press may ask to interview couples who want a civil partnership, so if that’s you and you’re happy to be interviewed, please drop us a line: hello@equalcivilpartnerships.org.uk 

Date: Wednesday 2nd November
Time: 9am
Place: Royal Courts of Justice on the Strand, London

We want to make the day as colourful as we can so we’re going to be putting our art skills to the test by creating lots of large cut-out hearts for the occasion. Please join us for that if you can on Tuesday 18th October - otherwise make your own at home and bring them along. Sign up here

Positive Progress 

There’s been lots of positive progress over the last few months. The Isle of Man has introduced same-sex marriage and different-sex civil partnerships, showing how easy and possible it is to attain full relationship equality. Why can’t England and Wales be next? 

The number of MPs and other prominent people backing our cause has also continued to grow. MPs from all parties are calling for civil partnerships to be open to all. So too are public figures, like the writer Owen Jones, as well as organisations including Liberty and TUC Women. 

Every ounce of pressure counts. That’s why we would dearly like to see your show of support during our hearing. 

It’s only with all your support that we’ve come this far - and that we’ll be able to go further. 

Thank you all and warm wishes from all of us here at the campaign, 

Rebecca and Charles 

@beccasteinfeld & @charleskeidan

#equalcivilpartnerships #equallove 

PS - If you haven't already done so, please consider donating to the campaign via this link https://www.gofundme.com/ECPcampaigns