ABSTRACT

Scholarship and activism concerning reproduction and parenting evinces a distinctly bifurcated trend. Lesbian and gay issues and those of heterosexual parents are usually addressed entirely separately, by different people writing to, and speaking with, different audiences. Mainstream family law texts and courses in universities continue to barely acknowledge the existence of gay and lesbian families (Parkinson 2009), while major scholars on reproductive rights are more likely to mention gay or lesbian cases in passing as evidence of a wider point (such as the role of intention in determining parentage) rather than to centre their issues in analysis, or explore them in any detail (Dolgin 2008: 360). Meanwhile, gay and lesbian family-related scholarship has had a far greater focus on family recognition issues specific to gay men and lesbians, rather than on issues of reproductive rights related to family formation. Perhaps because many gay and lesbian families conceive in collaboration with each other in informal circumstances, access to family formation avenues has not been felt to be as pressing an issue as the legal recognition of families already in existence. Yet, there is a sizable portion of gay and lesbian intending parents who are either unable or unwilling to reproduce in concert with each other and thus need fertility services and adoption. Both of these avenues have traditionally been, and often continue to be, highly discriminatory against same-sex couples. While commentators have pointed out the lack of reasoned basis for exclusion from fertility and adoption services, and identified avenues for challenging exclusions (Storrow 2007; Millbank 2006), discussion has tended not to extend beyond quite formalistic in-or-out parameters. Moreover, when challenges have been brought, or campaigns waged, for change by gay and lesbian parenting groups or individuals, there has been little sense of common cause with straight people who are also prospective parents and who need to use these same avenues of family formation. In short, gay and lesbian attention has focused on the exclusion of gay men and lesbians by virtue of their sexuality, and has too frequently assumed that heterosexual people are included by virtue of their heterosexuality. We are out and they are in; overlooking the fact that heterosexual prospective parents often suffer harmful

and discriminatory forms of exclusion from both fertility services and adoption avenues for a wide range of reasons – because they are single, or don’t wish to marry, are under or over a certain age, had cancer in recent years, or want to select a genetically matched embryo to try to heal an existing child.