Editorial: Children's welfare comes first

The Law Commission's New Issues in Legal Parenthood report has prompted a largely predictable response. Opponents view its recommendations, especially one that would allow egg and sperm donors to become "third parents" to their biological children, as undermining parenthood and the traditional concept of family. Where, asked New Zealand First's family affairs spokeswoman, was "the politically correct madness and experimentation with our children's future" going to stop?
The Government's response was, however, notably muted. It merely observed that the report grappled with difficult issues, and that it was required to respond within six months. No hint of approval was delivered, even though that must have been the Government's inclination. Having gone as far as it dared in the direction of same-sex marriage through the Civil Union Act, it clearly does not want a quick return to such fraught waters.

But whatever the cause for political trepidation, there is little in the Law Commission's suggestions that does not represent a reasoned response to societal change and developments in birth technology and DNA testing. In sum, they recognise that the law must protect children and make their welfare paramount. But they also accept that even if parenting should, ideally, be the domain of a married mother and father, the family today comes in many forms.

As might have been expected, heterosexual couples are less enamoured of the "third parent" proposal than gay parents. They can see children who are the product of donated eggs or sperm becoming confused by having two fathers. On the other hand, some lesbian couples relish the prospect of a male sperm donor becoming a legal father to their child. They may want a father figure around, or, alternatively, not oppose a donor's wish to stay in a child's life. That third parent would become liable to the same child-support provisions as the other parents.

The obvious potential flaw in this arrangement is overcome by the egg and sperm donors being able to opt for legal parenthood only if it is agreed with the other two parents.

In most cases donors do not become involved in order to parent. But if they are to have a role, that must be defined before the child is conceived. Any haziness about where the parties stand on parental rights is a recipe for later discord, potentially at the child's expense.

One of the commission's other major recommendations is that men should be forced to take DNA tests to settle paternity disputes. Intentional non-compliance with a Family Court-ordered test would attract fines of as much as $2500 and three months in jail. Any thought that this is a trifle draconian is overridden by the benefit that will flow to children. Men found to be a child's father will have to assume financial responsibility, and children will be left in no doubt about their genetic heritage. If, as the commission suggests, the DNA tests were subsidised by the Government, it is difficult to see how the court could uphold a challenge to a test order.

Many other of the 30 recommendations amount to little more than clarification of the law: the presumption, for example, that parenthood should be widened to include men in de facto and civil union relationships at the time of conception, rather than just husbands; and the proposal that surrogacy no longer involve the arduous process of adoption but be handed a legal framework through pre-birth interim court orders in favour of the intending parents. This is intended to avoid complications if surrogate mothers change their minds.

The Law Commission's report is the result of a request from the Government in 2003. It arrives at a somewhat delicate time. But that does not diminish the value of its recommendations. The lot of children can only be enhanced by clarification of issues of parenthood and legal responsibility.