Feminist Legal Studies

, Volume 18, Issue 3, pp 227–251 | Cite as

Lesbian and Gay Parents and Reproductive Technologies: The 2008 Australian and UK Reforms

  • Aleardo Zanghellini


This article analyses the laws that govern the allocation of parental responsibility for children conceived through non-coital reproduction by lesbians and gay men in England/Wales and Australia. In 2008 both jurisdictions introduced important reforms affecting this area of law, providing new options for the legal recognition of parent–child relationships in lesbian and gay households. However, the practical usefulness or effectiveness of the reforms may be limited by the excessive complexity or obscurity of the system of parental responsibility thus introduced. Furthermore, the reform Acts encourage the formation of some family structures—especially homonuclear families—while discouraging the emergence of more imaginative and cooperative parenting configurations at odds with heteronormative parenting scripts. Only through a clearer commitment to intentionality as a ground for the allocation of parental responsibility will future reform be likely to adequately protect the interests of lesbian and gay parents and their children.


Australia Gay and lesbian families Human Fertilisation and Embryology Act Intentional parenting Parental responsibility Parenthood 



I am grateful to the anonymous referees and the Editorial Board of Feminist Legal Studies for their suggestions for improvement. Many thanks also to the organisers of the HFEA Workshop, Keele University, 30 March 2009, where an early version of this paper was presented.


  1. Arnot, Lee, and Emma Harte. 2005. Shared parenting—The clear message from Re G. Family Law 35: 718–721.Google Scholar
  2. Arnup, Katherine. 1999. Out in this world: The social and legal context of lesbians and gay families. In Queer families, common agendas: Gay people, lesbians, and family values, ed. T. Richard Sullivan, 1–26. Binghamton: Harrington Park Press.Google Scholar
  3. Bailey-Harris, Rebecca. 1999. Lesbian and gay family values and the law. Family Law 29: 560–570.Google Scholar
  4. Boyd, Susan B. 2003. Child custody, law, and women’s work. Oxford: Oxford University Press.Google Scholar
  5. Boyd, Susan B. 2007. Gendering legal parenthood: Bio-genetic ties, intentionality and responsibility. Windsor Yearbook of Access to Justice 25: 63–94.Google Scholar
  6. Butler, Judith. 2002. Is kinship always already heterosexual? Differences 13: 14–44.CrossRefGoogle Scholar
  7. Calhoun, Cheshire. 1997. Family outlaws. Philosophical studies: An International Journal for Philosophy in the Analytic Tradition 85: 181–191.Google Scholar
  8. Collier, Richard, and Sally Sheldon, eds. 2006. Fathers’ rights activism and law reform in comparative perspective. Oxford: Hart Publishing.Google Scholar
  9. Cornell, Drucilla. 1998. At the heart of freedom: Feminism, sex and equality. Princeton: Princeton University Press.Google Scholar
  10. Douglas, Gillian. 1994. The intention to be a parent and the making of mothers. Modern Law Review 57: 636–641.Google Scholar
  11. Golombok, Susan, Fiona Tasker, and Clare Murray. 1997. Children raised in fatherless families from infancy: Family relationships and the socioemotional development of children of lesbian and single heterosexual mothers. Journal of Child Psychology and Psychiatry and Allied Disciplines 38: 783–791.CrossRefGoogle Scholar
  12. Kelly, Fiona. 2004. Nuclear norms or fluid families? Incorporating lesbian and gay parents and their children into Canadian family law. Canadian Journal of Family Law 21: 133–180.Google Scholar
  13. Lind, Craig. 2003. Re R (Paternity of IVF Baby)–Unmarried paternity under the Human Fertilisation and Embryology Act 1990. Child and Family Law Quarterly 15: 327–337.Google Scholar
  14. Lind, Craig, and Tom Hewitt. 2009. Law and the complexities of parenting: Parental status and parental function. Journal of Social Welfare and Family Law 31: 391–406.CrossRefGoogle Scholar
  15. McCandless, Julie. 2005. Recognition of family diversity: The ‘boundaries’ of Re G. Feminist Legal Studies 13: 323–336.CrossRefGoogle Scholar
  16. McCandless, Julie, and Sally Sheldon. 2010. The Human Fertilisation and Embryology Act (2008) and the tenacity of the sexual family form. Modern Law Review 73: 175–207.CrossRefGoogle Scholar
  17. Millbank, Jenni. 2003. And then … the brides changed nappies: Lesbian mothers, gay fathers and the legal recognition of our relationships with the children we raise. Sydney: NSW Lesbian and Gay Rights Lobby.Google Scholar
  18. Millbank, Jenni. 2007. Recognition of lesbian and gay families in Australian law—Part two: Children. Federal Law Review 35: 205–259.Google Scholar
  19. Millbank, Jenni. 2008. The limits of functional family: Lesbian mother litigation in the era of the eternal biological family. International Journal of Law, Policy and the Family 22: 149–177.CrossRefGoogle Scholar
  20. Millbank, Jenni. 2009. De facto relationships, same-sex and surrogate parents: Exploring the scope and effects of the 2008 federal relationship reforms. Australian Journal of Family Law 23: 160–193.Google Scholar
  21. Morgan, Derek. 2001. The bleak house of surrogacy: Broidy v St Helen’s and Knowsley Health Authority. Feminist Legal Studies 9: 57–67.CrossRefGoogle Scholar
  22. Polikoff, Nancy. 1995–1996. The deliberate construction of families without fathers: Is it an option for lesbian and heterosexual mothers? Santa Clara Law Review 36: 375–394.Google Scholar
  23. Rabinow, Paul, and Hubert L. Dreyfus. 1982. Michel Foucault: Beyond structuralism and hermeneutics. Chicago: University of Chicago Press.Google Scholar
  24. Reece, Helen. 2009. The degradation of parental responsibility. In Responsible parents and parental responsibility, ed. Rebecca Probert, Stephen Gilmore, and Jonathan Herring, 85–102. Oxford: Hart Publishing.Google Scholar
  25. Sheldon, Sally. 2005. Reproductive technologies and the legal determination of fatherhood. Feminist Legal Studies 13: 349–362.CrossRefGoogle Scholar
  26. Sheldon, Sally. 2009. From ‘absent objects of blame’ to ‘fathers who want to take responsibility’: Reforming birth registration law. Journal of Social Welfare and Family Law 31: 373–389.CrossRefGoogle Scholar
  27. Silverstein, Louise P., and Carl F. Auerbach. 1999. Deconstructing the essential father. American Psychologist 55: 397–407.CrossRefGoogle Scholar
  28. Smith, Leanne. 2006. Principle or pragmatism? Lesbian parenting, shared residence and parental responsibility after Re G (Residence: Same-Sex Partner). Child and Family Law Quarterly 18: 125–137.Google Scholar
  29. Smart, Carol. 1990. Law’s power, the sexed body and feminist discourse. Journal of Law and Society 17: 194–210.CrossRefGoogle Scholar
  30. Smart, Carol. 1991. The legal method and moral ordering of child custody. Journal of Law and Society 18: 485–500.CrossRefGoogle Scholar
  31. Smart, Carol. 2006. Preface. In Fathers’ rights activism and law reform in comparative perspective, ed. Richard Collier and Sally Sheldon, 7–12. Oxford: Hart Publishing.Google Scholar
  32. Wallbank, Julie. 2002. Too many mothers? Surrogacy, kinship and the welfare of the child. Medical Law Review 10: 271–294.CrossRefGoogle Scholar
  33. Wallbank, Julie. 2009. ‘Bodies in the shadows’: Joint birth registration, parental responsibility and social class. Child & Family Law Quarterly 21: 267–282.Google Scholar
  34. Weeks, Jeffrey, Brian Heaphy, and Catherine Donovan. 2001. Same sex intimacies: Families of choice and other life experiments. London: Routledge.CrossRefGoogle Scholar
  35. Weston, Kath. 1991. Families we choose: Lesbians, gays, kinship. New York: Columbia University Press.Google Scholar
  36. Zanghellini, Aleardo. 2007. Lesbian and gay identity, the closet and laws on procreation and parenting. Griffith Law Review 16: 107–130.Google Scholar
  37. Zanghellini, Aleardo. 2008. Is there such a thing as a right to be a parent? Australian Journal of Legal Philosophy 33: 26–59.Google Scholar
  38. Zanghellini, Aleardo. 2009. Who is entitled to parental responsibility? Biology, caregiving, intention and the Family Law Act: A jurisprudential feminist analysis. Monash University Law Review 35: 147–182.Google Scholar

Copyright information

© Springer Science+Business Media B.V. 2010

Authors and Affiliations

  1. 1.School of LawUniversity of ReadingReadingUK

Personalised recommendations