There are many differences between motherhood and fatherhood, but the biggest and most significant occurs on the day of the birth. Motherhood is certain: there is never any doubt about the biological mother of a child. But before the invention of modern DNA testing, there was less certainty about the child’s paternity. As a result, family law evolved to favour the husband of the mother at the time of the birth: he was presumed to be the father, with all its attendant responsibilities, such as financially supporting the child.
In the great majority of cases, this presented no problem, but occasionally there was a mismatch between the biological and legal father of a child. Paternity testing technology has made such unwelcome discoveries more frequent -and as you might expect, they can cause tremendous upset and not infrequently, divorce. The French were so concerned by the potential for disruption to peaceful family life that they banned paternity testing altogether in 1994. It remains illegal to this day.
But in some jurisdictions even negative paternity test results may not be enough to persuade family courts to overturn the legal status of the father. It’s the latter that counts as far as the family courts in many countries are concerned: the person actually fulfilling the role of Dad to the children. Genes are a very secondary consideration.
Fathers in English law
English family law is no exception to this tendency: if a man is married to the mother at the time of a child’s birth, he automatically receives the status of father. This applies even if his wife is acting as a surrogate mother for another couple. In almost all such cases he will have no genetic relationship to the child, but still be legally classed as the child’s father and listed on the child’s birth certificate.
In surrogacy, the commissioning parents must apply in the family courts for a ‘parental order’ transferring the legal status of parenthood to them – but even after this process has been completed, they will still not be listed on the birth certificate.
A human rights issue?
These seeming anomalies have caused controversy amongst surrogate parents. In June 2022, a British same sex couple took this issue all the way to the European Court of Human Rights. Their daughter had been born via a surrogacy arrangement made with another couple, with one partner the girl’s biological father. But the surrogate’s husband was, as usual, listed as the girl’s father on the birth certificate, despite having no genetic relationship to her.
The same sex couple argued that this stipulation was a breach of Article 8 of the European Convention on Human Rights, which defines a right to “private and family life”. But the Court was unconvinced, describing the argument as “manifestly unfounded” because the legalities of registration had not prevented the six-year-old from enjoying a day-to-day relationship with her biological father.
Unmarried fathers are also affected by this legal default to marriage. They are not automatically listed by on the birth certificate of children born outside marriage, and can only be included with the consent of the mother. Typically, cohabiting couples reach an agreement between themselves to declare paternity, and then jointly they sign the birth register. But this is optional, and may not happen. In some circumstances, the mother may not wish to name the father – if, for example, the parents’ relationship broke down acrimoniously – and she is under no responsibility to do so. If the father is not named, he is not the child’s legal father, and therefore has no parental rights (known as ‘parental responsibility’ in law).
It is possible to add the father to a birth certificate at a later date, if the mother applies to the General Register Office for the birth to be re-registered. She will need to submit evidence that a particular individual is the father and make a formal declaration to that effect.
Fathers can apply in court for a ‘declaration of parentage’ if the mother will not agree to him being registered. This involves taking a paternity test and this normally automatically triggers re-registration. However, such fathers do not acquire parental responsibility.