Event Review: Family Justice Council Annual Debate

Civil discourse is a dying art. We live in a divisive age where different opinions create deep fractures in friendships. The list of topics banned at the dinner table is increasing. Exchanging opposing views feels like walking a slackening tight rope. The art of disagreement is all too often lost.

There was something refreshing about the Family Justice Council Annual Debate beyond the drippy and dreary December weather. The audience understood all arguments were made in good faith and not personally held.

The debate itself was held in the hallowed halls of the Royal Courts of Justice. The event is an annual tradition to stimulate discussion on issues of public importance which may not always receive public attention. This year, the question before the panellists: 'Has the time come to widen the scope of legal parentage?'

Both sides were well equipped with convincing and well-prepared arguments. Panellists from each side alternated to set out their position.

The 'for' side spoke to three issues resolved through widening the scope of legal parenthood, all in the name of equity and to benefit parent and child outcomes.

Natalie Gamble, a leading fertility lawyer in the UK, spoke from personal experience to justify expanding legal parenthood: her partner (now wife) is her co-parent, but by law was a 'stranger' to their children as she was not named on their birth certificates. Gamble listed several issues with the current system, for example the parental order system for surrogacy wastes judicial resources and leaves children in 'legal limbo' at birth. The current law can also cause trans parents to be misgendered or outed on birth certificates. She stressed the need for reform, to enable families to make their intentions legal.

Dr Sophie Zadeh built on these arguments, setting out decades-old empirical evidence of psychological outcomes and experiences of parents who had conceived through surrogacy or gamete donation, and their children. She explained how parental orders for surrogacy create conditions for social intolerance which can impact children's psychological outcomes. The lack of legal recognition blocks social recognition causing negative feelings of uncertainty and inequality for non-biological parents and ripples out to stigmatise children.

Andrew Powell, barrister, closed by referencing social anthropological perspectives of kinship: parental titles are legally assigned through 'being' (marriage or biology), but fail to consider the kinship of 'doing' (performing parental responsibilities). He explained how widening the scope of legal parenthood could resolve issues with adoption orders, which currently erase birth parents from a child's legal history, against best practices recommending flexible contact. Reform could facilitate cultural change, allowing for contact and reflecting the modern family in its many forms.

The 'against' side argued the existing system already accommodates changing social circumstances, and change begets chaos and consequences. Dr Dafni Lima, assistant professor at Durham Law School, began by explaining how the existing system enables legal recognition of parents through surrogacy via parental orders, and allows more than two parents to be granted parental responsibility, but ensures judicial scrutiny to confirm the arrangement is in everyone's best interests.

Barrister, Susannah Johnson KC, continued by raising the unintended consequences of broadening the law. She argued that parental orders and parental responsibility orders are necessary and 'fit for purpose', drawing attention to the danger of surrogates changing their minds. However, she argued that additional safeguards, such as parental agreements during and prior to pregnancy, may be useful.

Finally, family law barrister Simon Rowbotham highlighted how adult motives are prioritised over the children's wellbeing, using the example of non-payment of child support. He argued that altering the existing regime to allow for multi-parent families would create chaos because no one is assigned responsibility and liability.

The arguments were made with conviction. But the 'against' camp had an uphill battle: the 'for' side relied on images of happy families being crushed under antiquated laws while the 'against' side relied on unhappy families abusing legal loopholes. The latter position wasn't particularly sympathetic. Ultimately, the 'for' argument that legal parentage must be widened in scope won by a large margin of 60 to 14 from the in person and online audience.

I cannot speak to the larger audience, but I was unconvinced by the 'against' side's inherent and paternalistic assumption: legal reform must protect against these new and 'other' families who may change their minds. The law is not brittle. History has shown how laws can stretch without snapping. Societies have made leaps to legally recognise the developing definition of a modern family as legitimate, including same-sex marriage which was legalised in 2014 and has become commonplace despite opposition at the time. This flexibility can apply to surrogacy, multi-parent families and whatever form of family comes next. I agree the law must be expanded to meet social realities.

Ultimately, both sides raised valid arguments. And that is exactly the point. A worthy topic was chosen and inspired some incredibly complex arguments. At the end, both sides shook hands. The debate was a nuanced and artfully conducted discussion.