The incoherent role of the child’s identity in the construction and allocation of legal parenthood

Brown, A. and Wade, K. (2023) The incoherent role of the child’s identity in the construction and allocation of legal parenthood. Legal Studies, 43(1), pp. 29-46. (doi: 10.1017/lst.2022.21)

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Abstract

This paper explores the relationship between the concept of the ‘identity of the child’ and legal parenthood. It examines the role of identity in the determination of legal parenthood in three contexts: (a) parental orders after surrogacy arrangements; (b) disputed paternity cases; and (c) the statutory rules in cases involving gamete donation. This paper argues that the concept of ‘identity’ plays an inconsistent role in the attribution of legal parenthood, because the concept lacks substantive content within judicial reasoning and the statutory framework. The understanding of identity, and the role it plays, appears to change in these different contexts to serve the different purposes that the law is trying to achieve. The reason for this inconsistency is that, despite the utilisation of the language of the ‘child's identity’, legal parenthood remains adult-centric and premised upon replicating the binary, two-parent model of the nuclear family. We argue that instead of appealing to this incoherent concept of ‘identity’, the courts should explicitly engage with different types of parenthood and acknowledge the importance of each for both children and parents. Such an approach would result in more truly child-centred reasoning and serve to diminish the predominance of the binary, two-parent model.

Item Type:Articles
Status:Published
Refereed:Yes
Glasgow Author(s) Enlighten ID:Brown, Dr Alan
Authors: Brown, A., and Wade, K.
College/School:College of Social Sciences > School of Law
Journal Name:Legal Studies
Publisher:Cambridge University Press
ISSN:0261-3875
ISSN (Online):1748-121X
Published Online:20 July 2022
Copyright Holders:Copyright © 2022 The Authors
First Published:First published in Legal Studies 43(1): 29-46
Publisher Policy:Reproduced under a Creative Commons licence

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