Birth Certificates and Biological Reality

In which I argue that the insistence on "biological reality" being accurately recorded on birth certificates is blind to the biological reality that matters; that of motherhood.

Biological reality

The statement that birth certificates “should” reflect the “biological reality” of a child’s parentage seems intuitively correct. It’s the child’s record, after all, and a child deserves to know the truth. Falsifying, disappearing and inaccurately recording children’s records has a dark history. Stealing their family history from children in this way is only one of the abuses perpetrated by mother and baby homes and other institutions in the UK and Ireland. It is for this reason that adoption is an absolute last resort; in general terms, it is considered a good thing for children to be raised by their biological parents. Where they cannot be, it is now considered good practice for children to have age-appropriate knowledge of their background.

Many (most?) adopted children and adults yearn to find out “where they came from.” They have a “missing piece.” I myself have had the experience of finding long lost blood family, men and women I never knew existed, aunts, uncles and cousins. There is a reason that I reached out to find them. There’s a reason that, when you watch Long Lost Family on the telly, or read the adoption message boards, it is never step parents, step siblings that people are looking for. Blood matters. I love my children both the same, even though I’m only biologically related to one of them. The blood of the covenant may or may not be thicker than the water of the womb, or it may not; my love for my children may be the equal, but it is the same house, built on different foundations. Biological reality really does matter.

Legal Fictions

It is possible to create legal fictions which take precedence over biological reality in legal matters, but it is right that this is only done very cautiously and carefully, and only in very clearly defined sets of circumstances. Adoption is one example. In the case where parents who are unable or unwilling to care for their child, it is generally agreed that it is better for that child to be raised in a loving home than by the state. To facilitate as much of a normal family life as possible, the state bestows the same rights in law on the parent(s) and the child(ren) as they would have had if the child were theirs in “biological reality.” But this is always an absolute last resort. There is very good reason for this.

Creating fictional legal “realities” that overcome biological realities has very dark potential and should only ever be a last resort, carefully weighed. The Gender Recognition Act played fast and loose with biology, prioritising the legal fiction of the gender recognition certificate, and we all know where that ends up. Playing fast and loose with record keeping leaves children vulnerable, including to trafficking. It is right to be extremely cautious about allowing such fiction in the realm of biological sex and reproduction to become widespread.

It is not a flimsy argument that records should accurately reflect parentage; there are compelling reasons to take this view. I do not. Let’s look at why.

Inaccuracies

All this being said, birth certificates have never accurately recorded 100% of fathers. A team of researchers estimated that between 1% and 30% of all fathers are not the biological parents of their children (although this may be exaggerated due to biases in their methodology, and around 4% is a more likely figure. In addition, around 5% of children have no father at all recorded on their birth certificate. Conversely, the number of cases where the wrong mother was recorded on the birth certificate, or where no mother was recorded, remains at or near zero (making exceptions for foundlings, exceptional circumstances etc).

The law reflects this disparity in the sexes. The Children’s Act (1989) gives the mother automatic parental responsibility at birth. The act states “every child should have a mother and should be able to discover who their mother was, because that is in the child’s best interests.” Conversely, as Lord Burnett remarked, “no-one else has that automatic parental responsibility, including the father.”  In short, whether a child will have a father with legal responsibilities conveyed by the birth certificate is, in the UK, at the whole discretion of the mother. Furthermore, if a mother does not name a man on a birth certificate and she is not married to him, it is extremely difficult for him to get any parental rights. It is against the law for him to have a child’s DNA tested, unless he already has parental responsibility for the child, or the permission of the mother. In fact, a mother has no legal right or responsibility to even inform a man that he is a father. If he doesn’t know and the mother doesn’t want him to know, he has no legal recourse at all.

The reasons for this can be set out rationally. Bodily autonomy (carrying the child for nine months conveys special status); history (it has been impossible for much of human history to know for certain who the father of any child was); practicality (the mother is biologically prepared to look after the child in ways that the father is not); trusting women (believing that mothers are best placed to make decisions for their children).

But my heart tells me that the underlying reason relates to that first, most fundamental mother/child bond. The reason that adopted children look for their mothers first; the reason that when feral children learn to speak, the first thing they ask for is their mother; the reason that the word “mother” sounds so similar in so many languages; the reason that the grief of a mother who gives up her child for adoption typically outweighs the grief of a father who does the same. We give mothers these rights because, no matter our own experience of mothering and being mothered, there is a biological reality to the bond between biological mothers and their infant children.

The certain knowledge which underpins that bond is looser when it comes to fathers. Efforts have been made to tighten it up. I’m sure you can think of some. Chivalric codes. Chastity belts. Control over women’s lives and sexualities. Evangelical Christian ceremonies in which children as young as nine pledge to remain virgins until they enter biblical marriage relationships. Even marriage, when it comes to it, has elements of controlling women’s sexuality and ensuring paternity (in law if not in reality).

Women have always found a way to live within – and without – these rules and restrictions. We have managed our social roles and our relationships in the sure and certain knowledge of our vulnerability to pregnancy. We have found our freedoms where they are to be found. We have made our compromises where we can. Uncertain about paternity, we have made the decision to take our secrets to the grave. Paternity has always, as a result, been a biological reality that is less certain, less clearly defined, less underpinned by biological reality, less vital (in every sense of that word) than motherhood is.

But now we have the technology to find out for certain whether a child belongs to a particular man, or to somebody else. It is within the power of technology and politics to mandate that every birth certificate records the accurate details of the mother and the father, if we decide that this is what we want. If we decide that the most important thing is that no child should have a gaping hole in their life where the knowledge of thier father should be. That it’s always best for a child to be able to find out the truth, no matter how dark it might be. That actually, the technological and institutional reality of DNA tests trumps the biological realities of new mothers; that technocrats, not mothers are best placed to determine who should be given parental rights over the children we bear.

You may notice, in this vision, a certain departure already from biological reality, and a flight to the rule of the faceless technocrat. But let’s run with it. What would this future look like for mothers and children?

Collateral damage

If you maintain your commitment to the record reflecting the biological reality of fatherhood AND motherhood, it is women and children who become the collateral damage. The woman who is pregnant by rape, who does not want to cement a relationship between her rapist and her child in law. The child who is pregnant, who would be forced by law not only to name her abuser, but to keep him in her life and the life of her child. A woman who is pregnant by a wealthy and influential (but deeply unpleasant) community leader from her home country, who has threatened to kidnap the child if she ever leaves him. A woman who finds she’s pregnant, and does not want her violent partner to beat this baby out of her the same way that he beat the last two out of her, and runs to a shelter.

In this Brave New World, these women would be unable to draw a line under their experience, protect their child, exclude the father from having any rights, leave him behind. They would be mandated to include their abuser on their child’s birth certificate, conferring all the rights of a father onto him. He could fight her for custody - and if he is powerful and wealthy and she is poor and socially excluded, he may win. Additionally, it is impossible to avoid the conclusion that this would lead to more instances of women, children, families being reabused by abusive men, who would use their status as “fathers” to get access to more victims.

Less extreme examples? My own grandmother. Her husband went away to war in 1939, leaving her with a babe in arms. He was larger than life – 6’6” tall, into musical theatre, a barrel chested charmer. He came back from the war changed, in 1945, and quickly went away to the army again, staying in past 1950. He was, by this time, an acting captain in the military police – by all accounts, a frightening presence. He beat her. Her son, age eight, tried to get between them on more than one occasion.

And then, in his absence, my grandmother was seduced by his brother. She found herself pregnant. It is my belief that she may not have known which of the brothers was the father. She announced on the birth certificate that it was her husband. What else should she have done? Both men were long gone. What good would it have done anybody to have named a married man, her husband’s brother, as the father? She took it to her grave. Should she have been forced to admit her fault, and shunned by her whole community, at great cost to her children and to her?

All other things being equal, we trust mothers to know what’s best for their babies. We trust families to come to arrangements about who is responsible for their children. We trust mothers to know who it’s best to dole that responsibility out to. Birth certificates don’t reflect the biological reality of fatherhood about 10% of the time, and that is just something that we accept that as a society, because enforcing the alternative would be a dystopian nightmare.

Dystopia

So what would we need to change to mandate that birth certificates reflect the biological reality of fatherhood as well as motherhood? First, we would need to have penalties for incorrect information being filled in, otherwise it’s just pointless. It is, already, an offence to fill in things like the mother, the place of birth, the date of birth incorrectly. All we would have to do is make it criminal to fill in the father’s details incorrectly. Just a little tweak to the law.

Let’s see, who could we criminalise? Obviously, it’s going to be mothers, isn’t it? Because mothers are the only ones who know for sure who the father is. And it is going to be a specific type of mother, too. Middle class women, who are married and financially stable and who have the resources to conceal their infidelity, or the social resources to live independently of their husband, won’t be criminalised. It is women with difficult pregnancies, like the circumstances outlined above, who will be criminalised for trying to keep their child safe. And it is meaningless to say that birth certificates “should” be accurate, unless you have some sort of penalty in law. You might as well say that you “should” be kind.

In addition to mainly poor, socially excluded and abused women, such a mandate would also criminalise men who were willing to step up and take responsibility. A man who stands by his wife who’s had an affair or been raped. A man who meets his girlfriend whilst she’s pregnant and decides to take responsibility. A man who desperately wants children, but who can’t have them by natural means, and who decides with his wife that sperm donation is the best way forward – through official or unofficial channels.

It gets even more dystopian when you think about how to check whether birth certificates contain accurate data. What sort of data would be admissible to the courts in these circumstances? There is one way. Mandate that a woman names a man on the birth certificate, and have mandatory DNA testing, at birth. Every baby, every man named on a birth certificate, verify parenthood. This would ensure that birth certificates reflect “biological reality” for all but a tiny number of cases, where the father was not known at all to the mother (for example, she slept with a variety of men she didn’t know the names of, for example at a party).

Such a move would leave women vulnerable in a way that they have never been in human history, in terms of the access given to (abusive) men to know their sexual misdeeds, and the ability of those men to criminalise women for trying to hide them. It is the wet dream of every man who ever wanted to have the final say over women and our bodies. Unmask the slut, send her to prison for refusing to name her misdeeds in the public records. It is a deeply regressive measure that wouldn’t help women, children or families.

But let’s go a step further with the thought experiment, will we? What about mandatory DNA testing for all men, sexually active or not? In fact, over time, this would work out anyway – all boys would have to be tested at birth, so their DNA would be on record. Can you see anything wrong with this utopia? Is it clear yet what direction the insistence on technology, rather than biological mothers, tends?

Donor insemination

Every adult in the UK has the right to know whether they were donor conceived (although the identity of donors may not be recorded in some cases). Donor conceived children have additional rights to other people in this regard. People who are not donor conceived require the co-operation and consent of others to find out whether their father is, in fact, their father. They will need a sample of the father’s DNA, and failing that, samples from wider family. This is as it should be.

My intuition says that most donor conceived children will never have cause to ask to see their records. I don’t have the figures, but I’m guessing that most children conceived with donor sperm in heterosexual couples will only ever find out the details of their conception by accident, through an Ancestry DNA test as an adult. Conversely, children born to women in lesbian relationships cannot hide the truth about their history from the child’s conception for very long. This gives children born to lesbian parents additional knowledge in comparison to those born to heterosexual couples, for the simple reason that it’s impossible to hide the obvious, biological truth.

So why has the law decided to allow the legal fiction of incorrect birth certificates with regards to donor conceived families? For the reason that has so far not been at the centre of this essay; the children. When my first son was born, the only ways for my wife to get any rights over him were a step parent adoption or a parental responsibility order under the Children’s Act 1989. A parental responsibility order would not have felt right. It gives you rights, but does not make you a family. It can be rescinded. The other option was step parent adoption.

We decided to pursue the step-parent adoption route. This process was gruelling. It took three years. During those years, my wife had no legal rights to my child. If I had died or been incapacitated, she would have had to fight, whilst grieving me, for a child that she had no biological relationship with. My parents are wealthy, and abusive, and have no criminal convictions. They would have fought her. They may have won. So my wife and I had to push ahead with the process. It was horrible. The social workers didn’t come out for nearly three years. In the end, we made a formal complaint about being fobbed off, and they eventually came out to see us.

My wife and I both had to be assessed as if we were both adopting an unrelated child. We were subject to an intrusive and invasive process looking into every area of our lives, to determine whether my wife and I were fit to parent the child that I had given birth to. Social services did not want to come out because they were so hard pressed for resources. One social worker said, when I enquired, “he’s safe, you see, and other children aren’t.” It took more than three years and a formal complaint supported by my MP to get them moving.

When we were finally approved, we went to court. My son was being adopted, I first had to sign away my rights as his biological mother (adoption terminates all parental rights). I then had to accept my role in law as his adoptive mother. If that isn’t an insulting, legal fiction going against biological reality, then I don’t know what is. Meanwhile, if my wife had been a man, we would have simply both been named on the birth certificate, as I was with my second child (the law had been equalised).

It is very clear to me which of these circumstances was in the best interests of the child involved.

If you are proposing that in donor families, the birth certificate should reflect the donor rather than the recipient, you will also need to find some resources to support a large number of parental orders and step parent adoptions. In the UK, about 4,000 children are born every year with the help of a donor. You will need to find lots of extra resources in the family courts to deal with these cases, and lots of extra resources in social work. You might find this difficult to do.

Alternatively, you can just accept that, all other things being equal, the person best placed to care, to make decisions for, to provide support for a new-born is its mother – the woman who gave birth to it. This position is reflected in UK law. Women giving birth are automatically recorded in law as the mother, regardless of whether that is with donor eggs or whether they have entered into a surrogacy agreement prior to the birth. For those in marriages or civil partnerships, parental responsibility over children born is taken as given. This applies for children born through donor insemination, through affairs, or any other type of arrangement where the father (or second parent) is not, in fact, the father.  Either way, whatever you think about donor insemination and birth certificates applies equally to lesbian and heterosexual couples. There is no need to bring lesbians into the discussion at all. Leave lesbians alone, please and thanks.

Women in general have always worked out our social and sexual freedoms around the biological reality of our vulnerability to pregnancy, and the associated uncertainty that men have regarding paternity. We have always had that much power. Any move to hand over the powers new mothers have in law over to fathers and to technocrats is not to insist on the records reflecting “biological reality.” It is, instead, a deeply regressive measure, which undermines the biological reality of the mother child bond, takes power away from mothers, and makes poor, abused and socially excluded women not only additionally vulnerable, but potentially criminalises them.

I cannot support it.