The real issue at stake in the recent Government response to the Consultation is amending the Human Fertilisation and Embryology Act (HFEA) 2008. For gay couples, the rules were changed to enable the female partner of the birth mother in a civil partnership to be recognised as the second legal parent (once both have legally consented), but *only* if the child was conceived through a licensed UK clinic.
The problem is that this law is only prospective and limited to conception through licensed UK clinics. It only affects children conceived after 6th April 2009. If the couple have children conceived by assisted reproduction before that date, or elsewhere, the partner of the birth mother has no automatic recognition as the legal parent. So, if they are not civil partnered, the partner has to go through adoption procedures and seek a residence order to secure her status in the life of the child.
Genderless marriage is then the magic wand. Under an amended HFEA, it would grant the same-sex spouse with a presumptive right of parenthood. This is what the Coalition is really after, since it would make the partner unrelated by blood, the automatic parent of any children conceived. It would assign a presumption of parenthood to a non-biological partner. Marriage will thenceforward promote a non-biological presumption that can override the rights of extended biological kin. Now, that's my problem.
The government knows that law courts have always favoured biological families. Genderless marriage laws will put the parental claims of non-biological partners AUTOMATICALLY above those of extended kin. If the birth mother dies, her former civil partner (now spouse) would be able to deny access for the extended blood relatives without recourse to law at all. This is why I re-iterate that marriage upholds the primacy of biological kinship.
N.B. Currently, the husband's presumptive right of paternity without recourse to the wife's explicit consent applies even to assisted reproduction procedures. It would require explicit proof that he did NOT consent to being the father to override the presumption.
As further proof, the government is quietly conducting a consultation to end the presumptive rights of adopted children to maintain any contact with their biological relatives and siblings.
Section 35: (1)If—
(a)at the time of the placing in her of the embryo or of the sperm and eggs or of her artificial insemination, W was a party to a marriage, and
(b)the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage,
then, subject to section 38(2) to (4), the other party to the marriage is to be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).
(2)This section applies whether W was in the United Kingdom or elsewhere at the time mentioned in subsection (1)(a).