Forget adoption for a minute: what happens with an actual, real live birth?

Published: April 16, 2014 at 12:14am

When a child is born to a married woman, the default legal position is that her husband is the father, even if he is not.

If her child has been fathered by a lover, that lover cannot claim paternity. Effectively, the law locks him out. This is done to protect the child, and not to protect the mother.

It is only the husband who can file a case disowning the child as not being biologically his. He can do this only within six months after the birth. Again, this is done to protect the child.

In all this talk about adoption by same-sex couples, we behave as though gay men and women are sterile, and this means key issues are overlooked and that couples made up of two men are treated exactly like couples made up of two women, when there are going to be legal issues that affect the one but not the other.

The most obvious is that children can be born – actually, physically, born – to a woman who is married to another woman. What, then, is the legal status of the other woman in respect of the child?

Maybe I missed it, but the Civil Unions law deals with adoption by same-sex couples, but not with children actually born to a woman in a same-sex marriage.

Will the other woman have the same status under the law as cuckolded husbands – in other words, will they have six months to disown the child, failing which the law will permanently view the child as theirs?

But that itself is predicated on another matter of confusion: marriage law automatically regards the woman’s husband as the father of any children born to her.

When children are born to one of the women in a same-sex marriage, how does the law now regard the status of the other woman? Obviously not as the father…so, what then?

In marriage between a man and a woman, if the husband decides to acknowledge the child of his wife’s lover as his own, the natural father can’t ‘break in’ and oppose that. With two competing ‘fathers’, the law comes down on the side of the one married to the child’s mother, regardless of biology. This is in the child’s best interests.

But with a child born to one woman in a same-sex marriage, there is no ‘competing father’. There is only the natural father, and the woman’s wife. What is the legal position of the natural father, and what is the legal position of the woman’s wife?




28 Comments Comment

  1. canon says:

    The next step is to eliminate ‘father’ and ‘mother’.

    • Aunt Hetty says:

      And that is when the deconstruction of society becomes complete and the anarchists win.\

      • albona says:

        In some comunes of Italy it is already: genitore 1; genitore 2.

        The irony here is that if you challenge this they will say that the concept of having a father and a mother is a social construct. Yet, they can socially engineer all they like. It is doubly ironic that many of the same people, not in Malta perhaps but in other countries, also tend to be environmentalists (of the type that deify it) yet here they continually defy nature – as though human-beings were not part of the natural world.

        A new bombshell is already hitting society which I dare say is challenging the Gay Lobby and making it look narrow-minded.

        This is the ever-increasing number of polyamourists. Just for the record, I know of several already. There are ever more three, four or even five-parent households all of whom claim to be the parent of the child on equal terms. What then? Genitore 3 perhaps?

  2. H.P. Baxxter says:

    Not sterile, Daphne, but asexual pasturi.

  3. Natalie2 says:

    Which goes to show you how well thought out this all is!

    It’s utterly shameful to what extent this government is willing to go to get votes; children’s rights have been totally disregarded.

    What a disgusting mess.

  4. Cikku says:

    Gejna qisna t-torri ta’ Babel. Kulhadd ihawwad u hadd ma jifhem xejn imsieken tfal.

  5. M. says:

    All right – let’s complicate it further, shall we?

    To put it plainly, if a married couple produces no offspring, then such marriage/union may be annulled, right?

    Or will the law be adapted for civil partnerships, thus creating inequality for married heterosexual couples?

    • Natalie says:

      I think that a marriage can be annulled only if it is not consummated. Production of offspring does not come into it as some couples may have to battle infertility.

      • Calculator says:

        After having to deal with someone at the Marriage Registry, I can confirm that this is basically the case and that Jo has, of course, forgotten to cover this aspect in his botched attempt to repay votes given by gay groups.

        He could have perhaps known about this ‘little’ detail had he done the logical thing and consulted someone working in the field before.

    • Lomax says:

      No, infertility or the absence of children does not render the marriage null. It is sexual impotence (the inability to have complete sexual intercourse) whether relative or absolute that leads to the marriage being declared null.

    • guzi says:

      I think in this you are wrong M. A married couple cannot have their marriage annulled just because they do not have any offspring.

  6. Simon says:

    Apparently the “NEW” law is not overly concerned with protection of children but more with the satisfaction of a perceived right by a small minority.

    • Peppa Pig says:

      Vulnerable children have no votes but the minority who considers adoption as their right has votes.

      Elementary Watson.

    • Ghoxrin Punt says:

      Without going into the merits of whether two mothers or two fathers can make better parents than one of each, and rest assured they can, these liberal laws never intrinsically benefit the vulnerable party.

      Unfortunately whilst in this case a number of children can and will benefit from this law, a number of others will not. This is why the adoption law should have been separated from the civil union law and studied further.

      But as usual, this government looks for the instant gratification, hence a botched legislation which will have more loopholes than they will be able to cope with

  7. Just Saying says:

    I would assume that the non biological parent is considered to be a parent with equal rights under the law as the biological parent.

    If not then the non biological parent applies for second party adoption rights. Solutions to new legal issues can be found when there is goodwill.

  8. Kif inhi din? says:

    We may see some very interesting litigation cases from all this, sadly to the detriment of the children involved.

    Gay couples often enter into private arrangements with surrogate mothers. These arrangements notoriously go wrong when Mother Nature and her genes kick in.

  9. Babilonia says:

    Quo Vadis Malta?

  10. C C says:

    I think things at the public registry are going to change completely, no more titles of mother or father but parent/s.

    This will result that even if my grandma who is in her 90s asks for a birth certificate the titles of mother and father will be no more.

    Besides, what is going to happen to these children at school on mother’s or father’s day? Are we going to ban this too?

  11. PWG says:

    Adoption has always been a sensitive matter and with the advent of ‘gay marriages’ it has become increasingly so.

    The Nationalist Party never said that they were against gay couple adoption per se.

    They rightly stated that the subject deserved deeper analysis.

    By throwing adoption into the mix Labour deprived the gay community from the satisfaction of seeing the civil union bill passed unanimously through parliament.

    Labour remain an unprincipled lot and all cunning.

  12. M. Cassar says:

    A country where ‘mhux xorta’ is a smoke screen for the law of the jungle.

    Take for example the Education Minister who has written to the Data Protection Commissioner seeking advice on concern expressed on a legal notice on data concerning persons in educational institutions: can we break it to him gently that Saviour’s Cachia appointment is with effect from March 25?

    Again ‘mhux xorta’?

  13. Just Saying says:

    Plus one would assume that the biological mother was impregnated at a fertility clinic where the biological father (read: sperm donor) would have had to sign away his rights in order to donate his sperm in the first place. That would be standard practice one would assume.

  14. How incompetent says:

    I’m no expert, however now that it is legal for gay couples to adopt doesn’t this also entitle them to an IVF procedure through surrogacy or sperm donorship, which to my knowledge is illegal in Malta?

    [Daphne – It’s not illegal.]

  15. How incompetent says:

    I was unsure about the legality of surrogacy and sperm donorship. Thanks for clarifying. In any case am I correct in thinking that this will now lead to gay couples expecting to be entitled to IVF, or am I overthinking this?

  16. Me says:

    This government is only interested in fulfilling its pre-election promises, the way it’s done, is not important.

    We have already ticked the ‘lower electricity rates’ off the list of promised things and showed it off on billboards all over Malta, with no concern given to the real price tag, as long as it makes the large crowd happy.

  17. Hawwadni ha nifmhek says:

    And I suppose gay couples can get divorced too. Who then keeps the child and who maintains the child? Mother 1, mother 2, father 1 or father 2 ? Are there any restrictions as to what sex of child two men can adopt for instance? Just so confusing…..

  18. Calculator says:

    http://www.independent.com.mt/articles/2014-04-20/opinions/comfort-zone-catholics-4684873738/

    Whether you agree with his religious views or not, the author of the article is an expert in bioethics and he has a point. It’s only a matter of time before gay couples (especially male) begin to demand eugenics to make up for their deficiencies. Jo, the ever thoughtful and benevolent leader he is, will surely open a Pandora’s box for them – or rather, their vote – and probably move on to euthanasia, abortion (drug legalisation is already on his list).

    Remember, he has already moved from “Noted, but no thanks” to not consulting at all. In this case, the Bioethics Committee has not been reconstituted at all, and I don’t see Jo wanting to do so any time soon.

Leave a Comment