Court and legislative battles have embroiled this nation in an uneasy search for the definitive answer to the vexing question: Who are dads anyway? The deliverers of DNA or the conveyers of care and concern? And if the answer is the latter, can the law insist each child have one?
The Women’s Electoral Lobby here recently made history when it became the first women’s organization ever to be granted leave by the nation’s High Court (the Australian equivalent of the U.S. Supreme Court) to intervene on behalf of women. The group will be arguing against no less an adversary than the Catholic Church in a case that will decide whether the nation’s single women will have the option of becoming mothers through modern technology.
The case is set to continue on Friday, with the Judge insisting it be resolved no later than September 2001.
The Victorian federal court had previously ruled in what is called the McBain decision that the state’s denial of fertility treatments, such as in vitro fertilization and donor sperm, to single women on the grounds of their martial status violated Australia’s own Sex Discrimination Act, as well as international agreements to which Australia is a signatory.
The Catholic Church is arguing the decision should be overturned and the women’s lobby is urging the court to uphold the state’s ruling.
Law May Pass in Parliament to Overrule High Court
Hot on the heels of the state court’s McBain ruling, the lower house of the Australian parliament passed a bill attempting to undo it by authorizing the Australian states to discriminate against single women by denying them access to donor sperm.
While two of the country’s three major parties, Labor and the Democrats, oppose the bill, the decision by two Labor senators to abstain means it may still become law. The Liberal government continues to support it on the grounds that children have a right to a “mother and a father by being conceived into a marriage or de facto relationship involving a man and a woman.”
But are the Catholic bishops and the Australian government really worried about the rights of children, or those of fathers?
It may surprise people to know that the law has long held marriage to be the true test of fatherhood. Paternal rights are accorded to the mother’s husband, regardless of whether her child is his biological progeny, although society has long attempted to ensure the legal father is also the biological father by socially and legally discriminating against “illegitimate” children and “unmarried” mothers.
In the last few decades, declining rates of marriage and rising numbers of divorces and extramarital births have exerted pressure on marriage-based definitions of fatherhood. This is evidenced by the increasing willingness of governments to use DNA tests to establish a man’s biological paternity and then use this fact to compel him to financially support “his” children.
In 1970s, Laws Said Mother’s Husband Was Father—Regardless
However, when widespread use of donor insemination began in the 1970s, both federal and state governments in Australia and in other nations moved quickly to pass legislation that ensured the mother’s husband~~~~not the sperm donor~~~~was the legal father of the children. Nevertheless, while governments allowed married and later de facto couples to use donor sperm to form families, they repeatedly denied lesbians and single women similar access.
The reasons are not hard to fathom. According to marriage-based definitions of fatherhood, children born from donor sperm to single women and lesbians are legally fatherless. And while the current Australian government has no qualms about men being viewed as optional when it comes to raising children~~~~its press releases repeatedly praise the “excellent” job done by sole parents~~~~its anxieties about legally excluding men from the process of forming families are palpable.
How do men want fatherhood defined? Some men seem eager to endorse biological definitions of paternity. A U.S. man is currently fighting in the courts for relief from child support payments to children he recently discovered are not his biological progeny, although he has been their social father from birth and continued to fill this role after his marriage broke up.
One explanation for declining numbers of men willing to donate sperm is the possibility that younger men believe that siring a child makes a man a father, regardless of his relationship to the child’s mother.
But what about the children men help conceive, children they don’t even know about? Or the fact that, without testing, men cannot be sure the children they love and raise are biologically “theirs”? The fact that biological and social fatherhood can be separated means biological paternity, on its own, will continue to be an inadequate base on which to ground men’s rights to and responsibilities for children and their role in the family.
Efforts to Assert Primacy of Marriage Likely to Fail
Returning to marriage-based definitions of paternity is similarly pointless. The pathetic attempts by the Australian government and “fatherhood” advocates in the United States to reassert the primacy of institutions like marriage~~~~and with them marriage-based definitions of fatherhood~~~~are doomed to failure. The economic factors that have historically forced women to become and remain married cannot~~~~and should not~~~~be reinstated in the 21st century.
The assumption made by those trying to drag us backward are that men are willing and eager to marry, have children and be responsible husbands and fathers, but women are rejecting men in droves in their eagerness to remain single and mother alone.
Fish may not need bicycles, but anyone who thinks most women don’t want to live and raise children with men is sorely mistaken. The Women’s Health Study of 39,000 Australian women shows a staggering 96 percent of young women aspire to be in a de facto or married partnership, and 92 percent want to be mothers by the time they are 35.
This suggests that for the vast majority of single women, to have a child using donor sperm is a decision of last resort. As one 37-year-old woman in a recent study put it: “Of course, the idea would have been to have met the man of my dreams and fallen in love and have it all happen the usual way. … When I was on the (donor insemination) program (I thought), ‘What a shame I’m having to do it this way.’ But it’s the only avenue I have to have a child at this point in time.”
The genie of fatherhood let loose by declining rates of marriage, rising numbers of divorces, extramarital births and the radical potential of donor insemination won’t go back into the bottle. We need to search for new, flexible definitions of fatherhood suited to the future, not the past. The best place to start is by asking questions about what men and women want~~~~from one another and when it comes to children~~~~and why they are having so much trouble finding it together.