Comments: Not In My Name

Thank you Inclusive Church for suggesting this and for helping us to respond easily to your call

Posted by Jean Mayland at Monday, 18 June 2012 at 4:39pm BST

This approach by Inclusive Church has integrity and I believe it is a very positive path ahead. I salute this approach. Not in my name, indeed. It appears the vast majority of the CofE have been double-crossed by a few bishops who are trying to ram their narrow views down the throats of the entire Church. This is going to backfire on the bishops and I can think of no greater form of expression than the "plan" put forward by Inclusive Church. Keep this topic in the spotlight. Do not let up. Transparency is essential and the whole world is watching.

Posted by Chris Smith at Monday, 18 June 2012 at 4:50pm BST

Thank you for alerting me to this campaign. I have made sure to contact my diocese to let them know that the CoE response DOES speak for me. Rather than being angry and disillusioned, I am encouraged to see that there is hope that the Church of England will not spinelessly drift back and forth with the tides of political sentiment.

Posted by Charles at Monday, 18 June 2012 at 6:01pm BST

But Charles, this is a statement being made by the CofE and therefore has nothing to do with other Anglican provinces, the USA for example.

Posted by Alastair Newman at Monday, 18 June 2012 at 6:36pm BST

The truth is that there is no consensus within the Church of England about these issues of sexuality. To present such a one-sided statement grossly fails to represent the range of actual views and beliefs in the Church. Furthermore, in the recent rejection of the Covenant, the mind of the Church was seen to oppose the very uniformity on sexual matters that your statement attempts to present. It is unfair and dishonest to publish a statement so unrepresentative on an issue where everyone's views should be equally and proportionately voiced. Dismayed but praying. God be with you, the Bishops, and God be with every member of the Church whether gay, lesbian, bisexual, trans, straight, whatever race, and may we accept everyone who seeks to live in love and committed partnership, and have their relationships blessed in sacrament before God and before the community. I signed the petition along with over 2500 others. Reading people's comments there is very very moving.

There was no representation in that statement for the lives, and love, and views of the very many who believe in a more open and generous church. The statement was one-sided, presenting a uniformity that doesn't exist, and more or less airbrushing alternative opinion out of existence.

Posted by Susannah Clark at Monday, 18 June 2012 at 6:51pm BST

Good to hear from you, Charles!

Are you another fan of the worship and life at St Aidan's, Moose Jaw? Eric and Kate are lovely advocates for its gospel centred life and deep liturgical sensitivity.

I am sure you will be writing to the bishop of Saskatuan telling him how impressed you are at the CofE!

It's good to know Briercrest has so many Anglicans on the staff!!


Posted by Martin Reynolds at Monday, 18 June 2012 at 7:06pm BST

I thought that it was a rather good response from the CofE. Nearly as good as the Catholic one.

Posted by Paul at Monday, 18 June 2012 at 7:57pm BST

I would be more than surprised if the C of E statement did not speak for the majority of Church of England members, even practising homosexuals, who by a substantial number have already said that they do not wish to see marriage redefined. That is because of the recognition that civil partnerships already provide the legal securities originally at the root of their concerns. To tamper with the institution of marriage in the way the revisionists suggest must be resisted wholeheartedly. So hats off to the C of E on this occasion for actually taken a stance on an issue. A stance which I suspect is representative of the majority view. Detractors would no doubt claim that majorities are all that matters, cf. women bishops!

Posted by Benedict at Monday, 18 June 2012 at 8:07pm BST

Anyone read the UK Methodist response to the consultation. It is much more honest and far better written. Not seen any other churches but one outcome might be we could come to an arrangement whereby we disestablish the CofE and replace it with another denomination as the established church in England... might work.

Posted by Craig Nelson at Monday, 18 June 2012 at 8:43pm BST

Wonderful news, Charles. Me too!

Hooray for a church that does not undermine the primacy of biological kinship in marriage with claims that non-biological relationships are equivalent.

The next target is to make 'social parenthood' equal to biological parenthood, so that the partner who is not the biological parent can claim (and contest) the rights of a biological parent. The ILGA makes this a clear objective of its contribution to the European Commission's Green Paper consultation.

So the effect would be that, if a closeted gay, comes out, divorces his wife and then marries a same-sex partner, he and his new partner would be granted custody, instead of the biological mother. After all, what care can a newly divorced mother provide in 'the best interest of the child' compared to the 'married' couple. Their lawyer would have a field day, identifying her inadequate child care arrangements. Perhaps, she'll make do with visitation rights.

Any other outcome that prioritises the genetic rights of the biological mother will be framed by liberals as a failure to recognise de facto families and as a danger to the 'best interests of the child'.

But just in case you think that's ruthless scaremongering: http://www.ilga-europe.org/home/publications/policy_papers/green_paper_april_2011

Posted by David Shepherd at Monday, 18 June 2012 at 9:49pm BST

"But Charles, this is a statement being made by the CofE and therefore has nothing to do with other Anglican provinces, the USA for example."

- Alastair Newman -

But Alastair, for those of us in other Provinces of the world-wide Anglican Communion, our Churches are inevitably affected by what is happening in the Church of England (which some of us still regard as our Foundation Church - despite the fact that we see Her lagging behind on some issues of common justice, such as this).

Most Anglicans are looking on with dismay at the way in which the Church of England hierarchy is seemingly ignoring the thrust of modern society's engagement with problems of homophobia and misogyny.

Similarly, the Anglican Church of Uganda's negative stance against homosexuals in that country is not a good look for others in the Anglican Communion who are pledged to justice.

If this state of affairs continues, it may be that the State in England will have to dissociate itself from the C.of E., and how will that help the Church and the people it is meant to serve with the Good News of the Gospel?

Posted by Father Ron Smith at Tuesday, 19 June 2012 at 2:46am BST

Our Fathers in God are being absolutely vilified - it makes me wonder why any woman would wish to join those who are currently being portrayed as such rogues and vagabonds?

Posted by Father David at Tuesday, 19 June 2012 at 7:33am BST

Father David, contrarily to your last supposition; it may just be that Women are required to provide the right and just balance in the House of bishops in the Church of England - as they have in other Provinces of the Communion.

Patriarchalism is not a particularly 'Christian' virtue. Jesus did much to overturn its influence in Israel - or as much as he was able in the time and circumstances of that era and ethos.

Posted by Father Ron Smith at Tuesday, 19 June 2012 at 11:54am BST

"it makes me wonder why any woman would wish to join those who are currently being portrayed as such rogues and vagabonds?"

Or indeed any man...

Posted by Alastair Newman at Tuesday, 19 June 2012 at 12:23pm BST

"Our Fathers in God are being absolutely vilified ..." "rogues and vagabonds"
Did I miss something?

I thought we were all wondering who wrote this piece - or at least which group oversaw it and who contributed.


Posted by Martin Reynolds at Tuesday, 19 June 2012 at 6:51pm BST

Those who are agreeing w/ the "Church of England Statement" are rather missing the point: they don't HAVE to state their agreement, because the (presumably) archbishops have done that for them.

It's those who DISAGREE who have been put in the position of NEEDING to speak out, "Not in My Name."

[@ DavidS: yes, you're engaging in "ruthless scaremongering" (and I read your link).]

Posted by JCF at Tuesday, 19 June 2012 at 11:24pm BST

Martin, St. Aidan's Moose Jaw is in the Diocese of Qu'Appelle, not the Diocese of Saskatchewan or the Diocese of Saskatoon (I'm not sure which you were trying to spell).

Posted by Malcolm French+ at Wednesday, 20 June 2012 at 7:30am BST

Here's me labouring under the misapprehension that it's the ministry of the bishops to lead the Church. When they do so with regard to their two now infamous amendements and their response to the Government's consultation on same sex marriage - I can't recall many bouquets being offered but I've lost count of the number of brickbats that have fallen upon their heads.

Posted by Father David at Wednesday, 20 June 2012 at 7:49am BST

JCF:
'and I read your link'.

Well done and more than enough, once you don't need to prove the scaremongering assertion.

Posted by David Shepherd at Wednesday, 20 June 2012 at 8:36am BST

I don't think I can spell any of them, Malcolm ....
but I did think it was in Saskatchewan.

I had put that comment aside for checking just that thing ...... but others descended on my computer and I thought it gone - not sent!

Still, I hope Charles knows and writes to the right one!

Posted by Martin Reynolds at Wednesday, 20 June 2012 at 8:44am BST

Perhaps I'm not the only one on this site, David Shepherd, who does not read your links. I understand quite enough of your position from your voluminous posts on these threads. I'm retired, but I still could not catch up to you in contributions. I have to admire your persistence, if not your theology.
However, the Anglican genius contains us both. and that is why we need to keep up the debate. Agape.

Posted by Father Ron Smith at Wednesday, 20 June 2012 at 11:03am BST

"Hooray for a church that does not undermine the primacy of biological kinship in marriage with claims that non-biological relationships are equivalent." Talk about discriminatory bullpoop. Though coming from the direction of those who routinely equate any non-heterosexual act with bestiality and pedophilia, shouldn't be that surprising.

Anyone else find the "biological kinship" fetish that has begun to surface in recent days grotesquely creepy? Not to mention grossly offensive to anyone in a adoptive relationship with another.

Posted by Lapinbizarre/Roger Mortimer at Wednesday, 20 June 2012 at 12:44pm BST

Roger:

Anyone seeking an adoptive relationship needs the consent of the biological parent, or a court order. That proves the primacy of biological kinship.

If you're not talking bullpoop, show me where adopting couples don't require such consent.

Posted by David Shepherd at Wednesday, 20 June 2012 at 3:52pm BST

Beginning to suspect that this is a private obsession of your own rather than a theological issue held by many others, David. Am I correct?

Posted by Lapinbizarre/Roger Mortimer at Wednesday, 20 June 2012 at 4:23pm BST

Agape, Ron. Long may the Anglican dialectic continue!

Posted by David Shepherd at Wednesday, 20 June 2012 at 4:26pm BST

"or a court order"
This has nothing to do with kinship.

Posted by Martin Reynolds at Wednesday, 20 June 2012 at 4:44pm BST

When the children were minors we had the same duties as natural parents to appoint a guardian for them in our will. That has everything to do with the kinship that had been established by law and love and if we had died this expressing of trust would have made another family - created new kin - and without any court intervention or any biology.

Posted by Martin Reynolds at Wednesday, 20 June 2012 at 6:51pm BST

Martin,

Really simple to Google 'adoption order':
http://www.adoption.org.uk/information/step_parent/court_guidance.pdf

Page 6: 'If the child’s birth parents or guardian have not consented to the adoption and you are asking the court to dispense with their consent, the court will need to be satisfied that:
• the parent or guardian cannot be found, or is incapable of giving consent, or,
• the welfare of the child requires that their consent be dispensed with.'

So, unless the birth parents are absent, or abdicate their responsibility in a manner that threatens the child welfare, an adoption order requires the consent of biological parents. That proves the primacy of biological kinship rights.

Roger:
The much-maligned response from the CofE says much the same. I contribute to other topics on TA, but there's not nearly the same level of participation. Theology aside, what better way to keep an aging mind sharp than to engage in a bit of verbal jousting for a worthy cause, like truth? Invigorating!

Posted by David Shepherd at Wednesday, 20 June 2012 at 6:55pm BST

'Twould be better if people wrote their own words rather than adopting a formulaic response. Identikit responses don't have the same punch ...

Posted by Jonathan Jennings at Wednesday, 20 June 2012 at 11:21pm BST

Martin,

Your first comment seemed brusque, but the latter was very sensitively and personally expressed.

Sorry, if my asynchronous response seemed a harsh retort. It wasn't meant that way.

Posted by David Shepherd at Wednesday, 20 June 2012 at 11:42pm BST

Martin, Moose Jaw is in the civil province of Saskatchewan, but the civil province is divided into three dioceses. The Bishop of Qu'Appelle has just been elected to the Diocese of Calgary and, pending the consent of the Bishops of the Ecclesiastical Province of Rupert's Land, will be departing the fix around or about the end of the summer.

Posted by Malcolm French+ at Thursday, 21 June 2012 at 4:23am BST

We *wouldn't* need to worry about CofE's position if we stopped playing their mini-Rome game. Divorce ourselves from them COMPLETELY, and we can make it clear in TEC that they don't speak for us.

As for the idea that "practicing homosexuals" (that vile term which, apparently, doesn't qualify as offensive to the mediators of TA) would give overwhelming approval to CofE's egregious statement of prejudice - how would you know? Silence isn't approval. Most I've heard from have simply given up on the idea that the CofE can, as a whole, represent Christ or that there is any hope to be found in it.

TEC and the other provinces - the hand sins against us, we need to cut it off.

Posted by MarkBrunson at Thursday, 21 June 2012 at 5:11am BST

I still don't understand how this weird concept of biological kinship rights is affected differently by straight adoption and by gay adoption.

But that's not even relevant, because this conversation seems to assume that it is gay marriage that will bring about gay adoption.
Whereas in fact, gay people can and do already adopt, foster and have their own children. So far, the biological kinship world does not have appeared to have fallen in.

I do wonder what changing civil partnerships to marriages will change in that respect.

If I converted my civil partnership into a marriage, my children would still be my children, my wife's children would still be her children, we would still be bringing up my children together. Total sum of change - nil.
Scary, isn't it.

Posted by Erika Baker at Thursday, 21 June 2012 at 7:24pm BST

Interesting that liberal Christianity is completely in tune with the status quo. It now seems that Orthodox Christians are the radicals of our time.

Posted by William at Friday, 22 June 2012 at 9:29am BST

What difference? Ask Ms.Gas and Ms.Dubois, who found out that civil partners couldn't share parental rights over Ms. Gas's IVF child.

Scary? No, just 'blue skies' thinking until one partner dies and the biological father tries to regain custody from the surviving partner. (Assuming that they were not conceived through an anonymous male donor) Especially, if he hadn't consented to relinquish those 'weird biological kinship rights'?

What if the surviving partner did not succeed in adopting them? Who is the automatic next of kin, making education and healthcare decisions on your children's behalf? Under educational law, a parent is considered to be the biological parent.

The rights accorded by law to an ex-husband over his kids is via the legal presumption of paternity. Consummation gives rise to that presumption. Currently, and quite rightly, there is no such presumption of any parental rights accorded by way of civil partnership.

As the ILGA document shows, the liberal hope is that access to the institution of marriage will open the way for civil partners to ensure their rights over each other's children are prioritised automatically by law. A presumption of parental authority without any biological kinship between each other or to the partner's child.

That's when the primacy of biological kinship rights is undermined.

Posted by David Shepherd at Friday, 22 June 2012 at 9:46am BST

"liberal Christianity is completely in tune with the status quo ..."

But I am constantly being reminded that only a tiny proportion of Anglicans and an even tinier proportion of Christians support women as priests etc or gay equality. Last time I checked women still suffered huge discrimination worldwide in status, legal rights and representation, and there were far more countries executing gay people than offering them equality before the law.

Posted by Martin Reynolds at Friday, 22 June 2012 at 11:24am BST

"No, just 'blue skies' thinking until one partner dies and the biological father tries to regain custody from the surviving partner."

But the biology is absolutely no different if Mrs Married and Mr Married use IVF and sperm from a known donor and then Mr Married dies and the donor wants to claim parental rights.

Or if Mrs Married and Mr Married use a donor egg and then Mrs Married dies and the egg donor wants to claim parental rights.

Biologically, this is absolute nonsense.

In any infertile relationship you have one partner who may be the biological parent of a child and one partner who isn't.
There is always one external partner who has donated either their biological sperm or eggs.

In case of adoption, neither parent is a biological parent, whether straight or gay.

This is a legal issue that the law can easily resolve, and there is absolutely no reason why the law should treat a same sex infertile married couple different from a straight married one.

Biologically, they're in the same boat.

Posted by Erika Baker at Friday, 22 June 2012 at 3:14pm BST

Instead of theory, look at the 'real world' judgement from the ECHR supporting the French authorities in the case brought by Ms. Gas.

Tell me why Ms. Gas would have been in a very different position had she been married?

Tell me why the ECHR's understanding of human rights allowed the State to confer upon a spouse the right to share, rather than relinquish parental rights to a spouse who isn't biologically related to their child, but disallowed a civil partner from doing the same? Why?

BTW, Ms. Gas and Ms. Dubois are both fertile women.

No, not nonsense.

Posted by David Shepherd at Friday, 22 June 2012 at 5:27pm BST

David,
I have now read the summary judgement, and interestingly, it states:

" Simple adoption enables a second legal parent-child relationship to be established in addition to the original parent-child relationship based on blood ties (as opposed to full adoption, where the new legal relationship replaces the original one). 3 Article 365 of the Civil Code governs the transfer of parental responsibility in the event of simple adoption. Parental responsibility is transferred to the adoptive parent; ****the biological parent or parents thus cease to exercise parental responsibility, except where the adoptee is the child of the husband or wife, in which case the couple share parental responsibility. This exception does not apply to the parties in a civil partnership.”****

http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=89415418&skin=hudoc-en&action=html&table=F69A27FD8FB86142BF01C1166DEA398649&key=97077&highlight=


Which only goes to prove our point that there is no full legal equality between marriage and civil partnership and that same sex marriage is necessary to remove this anomaly.

Because biologically, the issue is clear:

“2 people raise a child together, the child is the biological child of one of the parents, there is an external donor.”

From this description it is impossible to tell whether we’re talking about a straight or a gay couple. Which just goes to show that your biology argument is nonsense. The difference lies in the legal status accorded to marriages and civil partnerships.

I just hope other people have noticed this and pointed it out firmly when they filled in the Government’s same sex consultation form.

Posted by Erika Baker at Friday, 22 June 2012 at 9:59pm BST

Earlier you questioned in relation to adoption: 'I do wonder what changing civil partnerships to marriages will change in that respect.'

Now you say, again in relation to adoption: 'Which only goes to prove our point that there is no full legal equality between marriage and civil partnership.'

So why question, in respect of adoption, what difference exists and then claim that you've insisted there was no equality betwen them all along? Another clear contradiction, or rhetoric? Try to argue consistently.

You've avoided the ECHR's validation of the French authority's position by claiming the difference is an anomaly.that needs to be rectified. The ECHR insisted there was no discrimination against the couple's sexual orientation. There's nothing to rectify.

The difference between civil partnership and marriage is not an anomaly, but a valid difference based on the historic reality of marriage, rather than any legal innovation based on it. That was the position of the French authorities. The historic reality of biological kinship allows simple adoption (shared parental rights) for married couples and full adoption (relinquished parental rights) for civil partners. There is no right of homosexuals to marry.

The distinction was upheld for that reason. Rather than claim that the ECHR judgement justified an anomaly and rather than calling the primacy of biological kinship a nonsense, prove here that you understand why the Court supported the French authorities in this case.

Posted by David Shepherd at Friday, 22 June 2012 at 11:25pm BST

It's true, I had honestly thought that gay people could adopt on the same legal basis as straight people, because that's what everyone keeps telling me, that there is no legal difference between civil marriage and civil partnership.

It may even be that this is true in Britain and that this case would not have been brought here. I don't know the laws well enough - maybe someone here who has adopted or tried to adopt in similar circumstances can clarify?

The ECHR rightly stated that there was no discrimination on the grounds of sexual orientation, because the difference (not discrimination) lies in the legal difference between marrige and civil partnerships.

As we have shown conclusively, this is not based on any actual biology but on some artificial definition of biological kinship that owes more to the law than it does to an understanding of genetics.

So, really, your position is as valid as mine, as we're only talking about a legal construct.

My answer is that the case evaportes to nothing once same sex couples are included in the legal framework of marriage.

Rather than claim as universal truth that there "is no right" for homosexuals to marry, which is patent nonsense, as gay people do have precisely that legal right in a growing number of countries, it would be more helpful to research what would now happen if a similar case was to be brought my a married gay couple in Spain or in Denmark.

As the difference between being allowed to adopt and not being allowed to adopt is clearly based on whether a couple is legally married or not, I cannot see how, based on its own criteria, the EHCR could fail to permit adoption.

Posted by Erika Baker at Saturday, 23 June 2012 at 12:00pm BST

'Rather than claim as universal truth that there "is no right" for homosexuals to marry, which is patent nonsense, as gay people do have precisely that legal right in a growing number of countries'.

But that was not my position which I qualified to relate to the ECHR, so I repeat, it's not nonsense. As far as the ECHR is concerned, a right (e.g the right to marry) imposes a legal duty on a member state to legislate for it.

The ECHR is declaring that, within the margin of appreciation, member states are under no legal duty to legislate for gay marriage. It is within the margin of appreciation to recognise an alternative, like civil partnerships, but the alternative does not have to confer the historic, social and cultural meaning of marriage (which would be impossible).

'it would be more helpful to research what would now happen if a similar case was to be brought by a married gay couple in Spain or in Denmark.'

No need for further research on that If a state enacts legislation for gay marriage, any disparity in implementing that legislation for different orientations falls outside of the margin of appreciation. If challenged, any legislative disparity between religious and civil marriage on the basis of sexual orientation would be held discriminatory. Article 9 would offer no relief from that.

While you may disagree on other points, the CofE response has understood this properly. The UK is unique in that the parish priest has a legal duty towards the State to solemnise the marriage of any couple who meet the requirements established by law.

Posted by David Shepherd at Sunday, 24 June 2012 at 11:00am BST

'As we have shown conclusively, this is not based on any actual biology but on some artificial definition of biological kinship that owes more to the law than it does to an understanding of genetics.'

No, that's false. Kinship has its basis in the genetic realities of conceiving and building a new generation. The legal framework has developed to prioritise the shared legal rights of a couple sharing in the genetic make-up of their offspring.

Building a family as biological outcome of sexual union existed before the law began to codify parental rights and responsibilities. That biological outcome of sexual union must be shared by spouses. From the very beginning of a marriage, the surrendering of individuals to the genuine possibility of a biological outcome, in sexual union, is the basis of shared rights over everything.

This is not a legal construct. If I have publicly consented to an exclusive relationship and I have surrendered my body to participate in an act that could form a precious baby with that person, the State *presumes* that, by these words *and* actions, I intend to share all jointly with my wife.

The presumption is based on the historical meaning of marriage. A legal presumption based on something different has no basis in human history is open to varying interpretation. As a result, people then have to legislate further and litigate to compensate for different interpretations, since there can be no presumption. That's what will happen, if the proposals are enacted.

Posted by David Shepherd at Sunday, 24 June 2012 at 11:56am BST

"The legal framework has developed to prioritise the shared legal rights of a couple sharing in the genetic make-up of their offspring."

Yes, and with the advent of IVF and other donor arrangements, the legal framework has effortlessly been adapted to encompass the reality of infertility and of a family in which the child is the genetic offspring of only one of the parents.

That's the thing about the law - it can be effortlessly adapted to adjust to new realities without compromising the purpose of the original legislation.

"If challenged, any legislative disparity between religious and civil marriage on the basis of sexual orientation would be held discriminatory."

Why should it be different from remarriage after divorce, where the church has a legal opt out from its usual duty to marry anyone resident in the parish?

"As a result, people then have to legislate further"

Well, yes.
So what?

Posted by Erika Baker at Sunday, 24 June 2012 at 6:32pm BST

"As the ILGA document shows, the liberal hope is that access to the institution of marriage will open the way for civil partners to ensure their rights over each other's children are prioritised automatically by law. A presumption of parental authority without any biological kinship between each other or to the partner's child.

That's when the primacy of biological kinship rights is undermined."

And why shouldn't it be in such cases? If the child has been raised by someone other than the biological parent or parents...if the child has only known the adoptive parents as parents...isn't it in the best interests of the child (the normal decision-making parameter in the US at any rate) for the child to remain with the surviving adopted parent (of whatever gender and/or orientation)?

Posted by Pat O'Neill at Sunday, 24 June 2012 at 7:09pm BST

Pat,
this is particularly the case in the ECHR case David keeps citing in evidence for the importance of biological kinship: the donor, whose biological rights were considered to be more important, is anonymous and lives in a different country! How keeping that link going is supposed to be in the best interest of the child is a complete mystery to me, and the only rational explanation is that it;s a deficiency in the civil partnership law that did not foresee this issue and legislate for it.

"The applicants are French nationals who were born in 1961 and 1965 respectively and live in Clamart (France). They have been cohabiting since 1989. In September 2000 Nathalie Dubois gave birth in France to a daughter, A., who had been conceived in Belgium by means of medically-assisted procreation with an anonymous donor. The child does not have an established parental tie with the father, in accordance with Belgian law. She has lived all her life in the applicants' shared home."

I would hope that the couple was at least able to enter into private guardianship arrangements to ensure that this poor child wouldn't suddenly have to be removed from her surviving parent if her biological mother died.

But as the summary also says:
"The refusal to allow a woman to adopt her same-sex partner's child was not discriminatory: the Court saw notably no evidence of a difference in treatment based on the applicants' sexual orientation, as opposite-sex couples who had entered into a civil partnership were likewise prohibited from obtaining a simple adoption order."

So this problem will disappear as soon as the civil partnerships are changed to marriage.

In Britain, it might not apply at all, because opposite sex couples are not allowed to enter into a civil partnership and the argument that this is not discrimination would be much harder to make.

Posted by Erika Baker at Sunday, 24 June 2012 at 8:37pm BST

As usual I do not follow David Shepherd's arguments or reasoning.

The decision relating to France is seen as further proof of the need for gay marriage.

The common practice among lesbians is for the egg of one partner to be fertilised and then planted in the womb of the other. I am not sure how David Shepherd would understand the "biological kinship" this establishes - I just see some very happy families!


Posted by Martin Reynolds at Sunday, 24 June 2012 at 9:09pm BST

Erika:

All of the legal adaptations that you mention are subordinate to genetic parental rights. Donors and genetic parents have to sign consent forms relinquishing their rights. These proposals are not an adaptation of existing law, since they supplant the primacy of those rights.

The very idea that someone without any genetic connection could use marriage to override access to my offspring is morally repugnant. I doubt that you would want your parental rights overridden by anyone, especially without consent. Yet, you claim that biological kinship should not maintain the primacy that it is accorded through the institution of marriage.

'Why should it be different from remarriage after divorce, where the church has a legal opt out from its usual duty to marry anyone resident in the parish?'

Because the legal opt out is a mere difference in interpreting the disqualification in MCA 1972 Section 11(b): 'that at the time of the marriage either party was already lawfully married'. There can be no difference in interpreting the disqualification in clause 11(c): 'that the parties are not respectively male and female', if it no longer existed.

'So what?'

It's bad law. The whole purpose of law is to establish a consistent framework of rights and responsibilities, not a quagmire of contractual ambiguity.

The intent of spouses in marriage is understood by specific words and actions (public consent and private consummation) that are congruous with the historic institution. Instead, you endorse an incongruous attempt at mere contractual equivalence to marriage that any smart lawyer could claim was a misrepresentation of what their client intended.

Again, 'blue skies' thinking.

Posted by David Shepherd at Sunday, 24 June 2012 at 11:41pm BST

Martin:
'I am not sure how David Shepherd would understand the "biological kinship" this establishes - I just see some very happy families!'

Consider that the common practice that you've mentioned has given rise to a recent Florida custody battle in which the birth mother claimed that, by recognising the parental rights of the biological mother whom she divorced, the district court would give rise to 'a unique and unsupportable legal fiction that a child may have two mothers (and by implication) two fathers'.

The trial judge ruled in favour of the birth mother because the procedure of egg donation involves relinquishing all parental rights to the birth parent.

This verdict was eventually overturned on appeal to grant the genetic mother visitation rights. Even the most ardent supporters of this practice have no clarity regarding who should be given custody if the relationship breaks down.

Not exactly happy families.

Posted by David Shepherd at Monday, 25 June 2012 at 6:38am BST

"The very idea that someone without any genetic connection could use marriage to override access to my offspring is morally repugnant. I doubt that you would want your parental rights overridden by anyone, especially without consent."

Well, then you'd better not become an anonymous sperm donor.
Because if the women you donated to subsequently got married the law would already allow her husband to adopt the child.
This is not new. This is the whole point of *anonymous* sperm donation.

"There can be no difference in interpreting the disqualification in clause 11(c): 'that the parties are not respectively male and female', if it no longer existed."

Well, then someone will have to sit down and find a wording that satisfies the CoE.
You don't seem to find it very difficult at all trying to prevent 2 people from getting married. I'm sure someone who is tasked with writing a law that says "same sex couples may enter into civil marriage but may not marry in church" should not find that too difficult.
Especially since a. the government has already said that this is what it would do and b. church lawyers concluded last year that the government was right and that scaremongering bishops were simply scaremongering.

"Instead, you endorse an incongruous attempt at mere contractual equivalence to marriage that any smart lawyer could claim was a misrepresentation of what their client intended."

Er, no. I simply endorse a perfectly reasonable and logical attempt at saying that everyone is entitled to benefit from all the goods of marriage, regardless of what kind of sex they can have.
We've been here before – this whole conversation arises only because you have the consummation aspect fixed in your mind and are completely unable to move beyond it. You see it as the one defining criterion that cannot be changed because to change it would mean it would be changed and therefore it cannot be changed.

6 European countries and several non European ones have already successfully legislated what you call blue sky thinking. The sky has not yet fallen in, heterosexual marriage has not disintegrated further than it already had, children have not yet been returned to be looked after by anonymous donors, and the law seems to have coped without a total collapse of civil order.

Scary stuff.


Posted by Erika Baker at Monday, 25 June 2012 at 7:36am BST

"This verdict was eventually overturned on appeal to grant the genetic mother visitation rights. Even the most ardent supporters of this practice have no clarity regarding who should be given custody if the relationship breaks down."

You make it sound as if custody battles were a gay invention.

There have always been difficulties in deciding who should have custody after a marital breakdown.

In Britain, thinking has changed considerably in recent years and the terms "custody" and "access" are no longer used. Courts award residency, it is generally preferred if parents share parental responsibility for their children, and decisions are made in the best interest of the child, not based on the interests of warring parents.

There is no reason why this principle cannot be extended to same sex couples.
In fact... it already does extend to them, because as we have said before, gay people already adopt children, have their own or have some through donor arrangements.
Marriage will not change this.
Although I am greatful to you for pointing me to the French case which does prove that marriage will simplify a lot of it.

Posted by Erika Baker at Monday, 25 June 2012 at 11:01am BST

Yes, David, there are examples of unhappy gay families, just as there are examples of unhappy straight families...probably in the same ratios.

Posted by Pat O'Neill at Monday, 25 June 2012 at 11:32am BST

'Well, then you'd better not become an anonymous sperm donor. Because if the women you donated to subsequently got married the law would already allow her husband to adopt the child. This is not new. This is the whole point of *anonymous* sperm donation.'

Ridiculous! It requires donor consent to use genetic material.

From the HFEA Code of Practice:
Use of gametes for treatment of others
5 (1) A person’s gametes must not be used for the purposes of treatment services or non-medical fertility services unless there is an effective consent by that person to their being so used and they are used in accordance with the terms of the consent.
(2) A person’s gametes must not be received for use for those purposes unless there is an effective consent by that person to their being so used.

Nevertheless, whether you look for a way to square this with your assertion that anonymous donor consent is not required. The HFEA document (Section 5) clearly shows you are as wrong about this as your other assertIons are.

Posted by David Shepherd at Monday, 25 June 2012 at 11:44am BST

David,
The Code of Practice you cite requires a donor's consent the using the sperm donated for treatment services or non medical-fertility services.

And no-one must be inseminated with sperm unless the donor has consented to his sperm being used for insemination.

It says nothing about consenting to adoption or guardianship after the child is born.

The London Sperm Bank specifically confirms that the donor has no legal or parental rights (http://www.londonspermbank.com/)

And here http://www.hfea.gov.uk/1972.html#7202 it clarifies that:
From April 2009, the law changed in relation to women who are not married and same sex couples.

Where the woman giving birth is in a civil partnership with another woman, the legal second parent will be her civil partner, unless it can be shown that the female partner did not consent to the embryo being placed in the woman giving birth.

Which also clarifies that, unlike in France, adoption is not necessary.

The only time a donor could potentially be legally involved is where a single woman is treated:
Where a donated embryo is used in the treatment of a single woman, the woman who gives birth will be the legal mother of any resulting child. However, the law is not as explicit in such cases about who might be considered to be the legal father and there is a clear legal risk that the man whose sperm was used in the creation of the embryo may be considered the father.

The HFEA therefore advises any man intending to donate an embryo that was originally created for his partner’s and his own treatment to seek legal advice before doing so. In particular, he should satisfy himself about any potential to be recognised in law as the father of any child born if the embryo is donated to a single woman who does not have a husband or civil partner or has not entered into a parenthood agreement with another person.

Posted by Erika Baker at Monday, 25 June 2012 at 4:19pm BST

'And no-one must be inseminated with sperm unless the donor has consented to his sperm being used for insemination'

So, I guess you reluctantly accept that donor consent is required.

'It says nothing about consenting to adoption or guardianship after the child is born'.

Just a wild stab in the dark, but maybe a fertilization and embryology authority is more concerned with consent to use the gamete for insemintion than with adoption rights. The relinquishment of parental rights is predicated upon that consent.

BTW, donors are no longer anonymous, by law they must be identifiable, so that although the consent forbids them to initiate contact, the child is permitted to discover and contact with their genetic parent.

The fact that donors must first provide consent proves the primacy of biological kinship rights as enshrined in law. Rights that you assumed were simply appropriated without donor consent. Rights that also allow the child to contact the genetic parent(s) at 18.

So, these rights that you would set at nought are not as 'weird' as you first made them out to be. If fact, not weird at all.

Posted by David Shepherd at Monday, 25 June 2012 at 6:10pm BST

Now you've lost me completely.
You started by saying that:
"The very idea that someone without any genetic connection could use marriage to override access to my offspring is morally repugnant. I doubt that you would want your parental rights overridden by anyone, especially without consent."

Now you say:
"Just a wild stab in the dark, but maybe a fertilization and embryology authority is more concerned with consent to use the gamete for insemintion than with adoption rights. The relinquishment of parental rights is predicated upon that consent."

So: the donor has to consent to his sperm being used for insemination, obviously, and that's the absolute end of his rights. The sperm can then be frozen for 10 years and he will have absolutely no idea if it has been used, who for, and if the insemination was successful.

Instead, the rest is obligation: he has to agree that the child may contact him aged 18.

What happens in between is none of his business.
So "access to my offspring" is not a concept that has anything to do with this.

And as we have also established that the 2nd civil partner is the child's legal second parent, we can now put this conversation to bed, can't we.
Because it was all about whether same sex couples should be allowed to marry or whether that would completely throw the current definition of children in marriage into disarray. As we have shown, same sex couples appear already to have the same rights and obligations in this respect in Britain (if not in France). And none of the biological realities of donor fertilisation change if the couple involved is of the same sex.
And your biological kinship right ends with the moment you have given consent to your sperm being used.

It doesn’t get clearer than that.

Posted by Erika Baker at Monday, 25 June 2012 at 7:46pm BST

"The fact that donors must first provide consent proves the primacy of biological kinship rights as enshrined in law. "

Nonsense. The only thing it proves is that the law requires consent before a person's bodily fluids can be used in a medical procedure...just as it requires consent before body parts can be so used.

Posted by Pat O'Neill at Tuesday, 26 June 2012 at 1:32am BST

I said 'override access to my offspring'. The word override relates to instance in which CONSENT IS NOT GIVEN. Yet, your argument hinges on instances in which CONSENT *IS* GIVEN.

In your examples, the donor's parental rights have been relinquished by consent. In my statement, CONSENT IS NOT GIVEN, but OVERRIDDEN.

While you may aspire to speak conclusively, the whole thread shows that, unless relinquished by CONSENT, biological rights have primacy. They must not be overridden by legislative or political fiat.

It's clear from your posts, that you hope that gay marriage will accord gay partner the presumption of parenthood through marriage, even when the father has NOT consented. You want the State to override, by means of the status of marriage, parental rights WITHOUT CONSENT and accord it to those who have no shared biological relationship to the child. And all this for partners, who are both perfectly fertile, but can't get around the natural limitation that sex between two fertile bodies of the same sex cannot produce a child.

Then, you have the TEMERITY to do violence to the English language by calling the requirement of both sexes in order to produce a child, fertility. And those who abandon that requirement, infertile. WRONG, WRONG, WRONG.

Posted by David Shepherd at Tuesday, 26 June 2012 at 11:11am BST

Counterfeits might circulate in this country posing as legal tender. They will turn up in a minority of transactions.

The banks won't collapse and as you put it 'the sky won't fall in'. Same with counterfeit marriage. Guess what? It's still fraud.

Capiche?

Posted by David Shepherd at Tuesday, 26 June 2012 at 7:02pm BST

This discussion has gone on too long, on a tangent to the main point of the original article. Comments now closed.

Posted by Simon Sarmiento at Wednesday, 27 June 2012 at 9:56am BST