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Collaborative Co-Parenting COLLABORATIVE CO-PARENTING: A COMPARATIVE STUDY OF THE LEGAL RESPONSE TO POLY- PARENTING IN CANADA AND THE UK Submitted by Philip Dennis Bremner to the University of Exeter as a thesis for the degree of Doctor of Philosophy in Law, October 2015. This thesis is available for Library use on the understanding that it is copyright material and that no quotation from the thesis may be published without proper acknowledgement. I certify that all material in this thesis, which is not my own work has been identified and that no material has previously been submitted and approved for the award of a degree by this or any other University. ……………………………………………………………………………… Abstract This socio-legal thesis explores the highly topical and underexplored issue of the legal regulation of gay and lesbian collaborative co-parenting in England & Wales, drawing on British Columbia (Canada) as a jurisdiction where this issue has been considered in more detail. These families involve reproductive collaborations between single or partnered lesbians and gay men where a child is conceived through assisted reproduction and each of the adults remain involved in the child’s life. Collaborative co-parenting can take a variety of forms, each of which is distinguishable from gamete donation or surrogacy because each of the adults continues to exercise some sort of parental role in relation to the child. Since the adoption of the UK Human Fertilisation and Embryology Act 2008, it has been possible for two female parents to appear on a child’s birth certificate following birth and for two male parents to be registered following a court parental order. The UK parliament has not, however, gone so far as to allow more than two parents to be legally recognised. This contrasts with the approach in British Columbia, which allows three parents to be registered on the birth certificate in cases of same-sex parenting involving assisted reproduction. In both Canada and the UK, however, courts have struggled to balance the interests of those involved in these collaborative co-parenting arrangements with varying degrees of success. This thesis combines detailed, comparative doctrinal analysis with a series of case studies of collaborative co-parenting families gathered from in-depth 2 interviews with co-parents and legal professionals in Canada and the UK. In doing this, a typology of collaborative co-parenting families is advanced. The conclusion the thesis draws from this is that gay and lesbian collaborative co- parents are not an homogenous group and the law’s adherence, in England & Wales, to a one-size-fits-all, dyadic approach to parenthood based on the intimate couple does not adequately reflect the needs of the adults in this situation nor what is in the best interests of the child. One of the key findings to emerge from this study and the typology of collaborative co-parenting it advances is that the legal framework in England & Wales risks overlooking the interests of gay men who are involved in collaborative co-parenting in its attempt to protect women-led homonuclear families, even where this is not consistent with their agreed role in the child’s life. Therefore, a central recommendation is that any reform to this area of law should move away from a prescribed dyadic parenting model as the basis for regulating parent-child relationships in collaborative co-parenting families. Instead, it should require a careful consideration of pre-conception intentions, recorded where possible in a parenting solidarity agreement. 3 Table of Contents ABSTRACT ........................................................................................................................... 2 LIST OF CASES ...................................................................................................................... 8 LIST OF STATUTES .............................................................................................................. 11 LIST OF ABBREVIATIONS .................................................................................................... 13 ACKNOWLEDGMENTS ........................................................................................................ 14 THESIS OUTLINE ................................................................................................................. 15 PART ONE: SETTING THE SCENE .......................................................................................... 17 CHAPTER ONE: INTRODUCTION .......................................................................................... 18 AIM AND RESEARCH QUESTIONS .................................................................................................... 26 GENERAL APPROACH TO THE RESEARCH .......................................................................................... 26 SITUATING THE RESEARCH ............................................................................................................. 30 Legal Context in Brief .......................................................................................................... 31 Situating the Study’s Theoretical Focus .............................................................................. 33 Socially Locating the Research ........................................................................................... 35 Research Context ................................................................................................................ 39 (Gay) Men and Reproduction ............................................................................................. 44 Recognising Diversity through Law .................................................................................... 47 CHAPTER TWO: DOING THE RESEARCH ............................................................................... 53 CHOICE OF RESEARCH TOPIC AND RESEARCH QUESTIONS ................................................................... 53 RESEARCH APPROACH .................................................................................................................. 55 Overview ............................................................................................................................. 55 Adopting a Socio-Legal Perspective .................................................................................... 56 4 Comparative Approach ....................................................................................................... 60 EMPIRICAL RESEARCH METHODOLOGY ............................................................................................ 69 Overview ............................................................................................................................. 69 Research Design and Strategy ............................................................................................ 70 Participant Recruitment and Sampling ............................................................................... 73 Participant Overview .......................................................................................................... 77 Data Collection ................................................................................................................... 80 Data Analysis ...................................................................................................................... 87 Ethical Considerations ........................................................................................................ 92 CONCLUSION .............................................................................................................................. 93 PART TWO: COMPARATIVE LEGAL INSIGHTS ....................................................................... 94 CHAPTER THREE: COLLABORATIVE CO-PARENTING AND THE HIERARCHY OF FAMILIES - NAVIGATING LEGISLATIVE TENSIONS ................................................................................. 96 INTRODUCTION ........................................................................................................................... 96 LEGISLATIVE REFORM IN ENGLAND & WALES ................................................................................... 96 PROVINCIAL VS. FEDERAL LEGISLATION IN CANADA ......................................................................... 106 PARENTAL PROJECTS IN QUEBEC’S CIVIL LAW ................................................................................. 108 FILLING THE LEGISLATIVE GAP IN ONTARIO .................................................................................... 122 THE LEGAL RECOGNITION OF FORMER PARTNERS IN ALBERTA ........................................................... 129 LEGISLATIVE RECOGNITION OF POLY-PARENTING IN BRITISH COLUMBIA ............................................. 133 INSIGHTS FROM PRACTICE ........................................................................................................... 138 CONCLUSION ............................................................................................................................ 142 CHAPTER FOUR: NORMATIVITY AND VULNERABILITY – JUDICIAL RESOLUTION OF COLLABORATIVE CO-PARENTING DISPUTES ...................................................................... 144 INTRODUCTION ......................................................................................................................... 144 CHARACTERISING THE (COLLABORATIVE CO-PARENTING?) CASES ...................................................... 145 5 THE VARIOUS MANIFESTATIONS
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