Abstract
A rich literature has examined fatherhood as an evolving construct, of which the shaping forces include family policy, social practices, and legal discourse. Fatherhood is recognized as ‘fragmented’, with the separability – at least in principle – of roles such as genitor, provider, social parent, and mother’s spouse (Collier and Sheldon, 2008). Parallel to technological developments that make it possible to know genetic connection with certainty has flourished a discursive emphasis, including by judges, on children’s knowing their origins and their ‘biological truth’ (Fortin, 2009; Robert, 2019). Developments in reproductive technology, an increasing legal and social acceptance of surrogacy, and recognition of lesbian couples as parents have spurred a similar fragmentation of motherhood, making it possible to distribute functions such as provision of gametes, gestation, and caring across multiple figures. Mitochondrial transfer may complicate things still further, giving rise to a view of a child as having three or more genetic parents (MacKellar, 2017). Legal research on these matters is often anchored to domestic legislation (e.g. McCandless and Sheldon, 2010), while qualitative research in the social sciences may appear less jurisdiction-specific – although social practices unfold in space shaped partly by legal norms. What this literature has neglected, relatively speaking, is the supranational sphere. Alice Margaria’s illuminating study makes an impressive contribution towards remedying this neglect.
Margaria’s monograph shows methodological self-consciousness and careful attention to a theoretical framework drawn chiefly from a rich sociolegal literature in English. She frames the review of the European Court of Human Rights’ (the Court) role in redefining fatherhood around three key concepts. These are ‘conventional fatherhood’, a unitary conception based on prevailing societal perceptions and expectations (at p. 13); ‘fragmenting fatherhood’, drawn from Collier and Sheldon, to highlight the disintegration of components of the model of conventional fatherhood (pp. 14–15); and ‘new fatherhood’, the idea of the man who is not only genitor and breadwinner but also hands-on carer (p. 16). Informed by these concepts, the book pursues two aims. First, it ‘identifies shifts and inconsistencies’ in the Court’s understandings ‘of what it means to be a “father” and what rights and obligations should accrue to that status’ (p. 17). Second, it examines the underpinnings of the emerging definitions of fatherhood, attempting to clarify whether they are doctrinal, moral, or both (p. 17). Margaria observes that the Court’s ‘attachment or departure from “conventional fatherhood” has rarely been an explicit process’ (p. 46); her endeavour entails ‘digging deep into the reasoning to unveil values and assumptions underpinning the Court’s views regarding fathers and their role within the family’ (pp. 46–47).
These aims are pursued across four demographic transformations, each granted a chapter of case analysis: fatherhood and assisted reproduction; postseparation and unmarried fatherhood; fatherhood and family–work reconciliation; and fatherhood and homosexuality (sic). Margaria indicates that she limits her analysis to carefully selected cases (p. 46). While there are exceptions, the cases tend to arise via an applicant who is an ‘unconventional (potential) father’ who is denied paternal status or rights in virtue of national legislation premised on a conventional understanding of fatherhood (p. 19).
The cases typically inscribe themselves under Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights (the Convention). In addressing questions about the definition of fatherhood, the Court relies on doctrinal tools including the margin of appreciation, which recognizes discretion on the part of signatory States in settling conflicts between individual rights and national interests or between competing individual rights, and the view of the Convention as a ‘living instrument’ to be interpreted in the light of contemporary conditions (p. 23). Margaria’s inquiry bears on how the Court has deployed these doctrinal tools in defining fatherhood in key sites.
The enterprise is bold and risky, because the decision makers at first instance are the national legislatures, not the Court under scrutiny. Given the margin of appreciation, the Court functions to a degree like a domestic tribunal undertaking deferential judicial review of administrative action. It might be thought perilous, then, to reconstruct that tribunal’s views on a substantive matter such as fatherhood. Margaria remains conscious, though, of the limits of what the cases can show her and, as I shall explain, she resists misshaping her data to make it tidy.
Although she observes acknowledgement by the Court of a functional approach and openness to a range of family arrangements, she reads the jurisprudence on Article 8 as maintaining ‘a hierarchy of relationships’ (p. 27), with the bionormative married couple (Witt, 2014) on top. It remains the case that ‘the nature of the relationship from which a child is born is likely to have a bearing on whether the father–child tie is considered to enjoy the status of “family life”’ (p. 27).
I mentioned that Margaria avoids the trap of distorting her data in the service of clear conclusions. Two examples are salient. One is that she is alert to the possibility that the Court’s definition of fatherhood ‘might be, simultaneously, the outcome of both doctrinal and moral forces’ (p. 36). The indeterminacy of the doctrine of the margin of appreciation preserves space for subjectivity, notably via variables that are ‘mostly hard to measure’ and its unclear content (p. 39).
The other example is that she draws different conclusions from the four sites. To summarize crudely, Margaria argues that the case law on assisted reproduction ‘confirms the relevance of biology, marriage, and of the compliance with heteronormativity as essential grounds for making someone a legal father’, despite acknowledgement that assisted reproduction can fragment fatherhood (p. 53). She characterizes this approach as ‘an act of judicial self-restraint and a premeditated choice on the side of the Court’ (p. 54). The case law on postseparation and unmarried fatherhood functions variably across subcategories, paying some attention to care in addition to biological link and showing willingness on the Court’s part ‘to keep the marital family intact’ (p. 106) and ‘to extend the rights and responsibilities of marriage to those relationships that most closely reproduce the marital family’ (p. 107). Here the position is attributed to a predetermined moral position, not to ‘consistent and methodologically sound doctrinal paths’ (p. 108). It is in the cases around family–work reconciliation that the Court has departed furthest from ‘conventional fatherhood’. Critically, on this matter it is not a question of unbundling components of fatherhood and allocating them to two or more men, but, rather, of rejigging the sharing of parenting responsibilities and economic provision between a child’s father and mother (p. 110). As for gay men and fatherhood, Margaria contends that the Court has deployed its interpretive doctrines variably to advance moral positions. The Court’s jurisprudence reflects ambivalence between doubt about ‘the relevance of heterosexuality as a determining factor for granting parental and adoption rights’ (p. 151) and a ‘persisting attachment to a heteronormative view of marriage and…the restatement of marriage as premise and guarantee for a positive development of children’ (p. 151). As in previous ones, Margaria suggests in the chapter on gay fathers that the Court ‘seems to value care and caring intentions only if they are complemented by conventional features, such as biology, marriage and heterosexuality’ (pp. 151–152). In short, the Court moves furthest from conventional fatherhood when the mother is the only other adult on the family stage.
Key conclusions from the study are the abiding weight of conventional fatherhood and the use of doctrines to support and legitimate the Court’s predetermined moral position. There is a whiff of American legal realism not always pronounced in jurisprudential analysis from the continent. One might speculate that the book’s big reveal that case law interpreting the open-textured language of human rights reflects the judges’ moral views will startle readers from the common law less than readers from the civil law, if it startles any of them. Margaria’s study usefully gathers and analyses significant judgments from the Court’s work product on fatherhood. It may prompt readers to turn their gaze on the domestic legislation and jurisprudence familiar to them, asking themselves how far those sources have moved from the conventional fatherhood that seems still so influential for the Court. While it would take a vast study to answer the query, this reviewer wanted to know more about whether the book’s big takeaway is that the Court uses doctrine as a vehicle for its predetermined moral views on fatherhood more than on other issues or whether the book provides a helpful study of business as usual in Strasbourg. In other words, what is the baseline for rigorous deployment of doctrinal tools unsullied by predetermined moral views?
While sensibilities around vocabulary vary across languages and contexts, some readers may find jarring the language of ‘homosexual individuals’ and ‘homosexuality’ to refer to parents in same-sex couples (e.g. at p. 8 and Chapter 6). The neologism ‘homo-parenthood’ occurs repeatedly. Used oftener in languages other than English, such as French (e.g. Robinson, 2005), such terms risk reinscribing the heterosexual and heteronormative character of parenthood when unmodified. Such an effect would be especially regrettable in a book that takes pains to show sensitivity to heteronormativity.
Striking in its methodological and theoretical ambition, Margaria’s Construction of Fatherhood will advance reflection and debate on critical questions in family law and judicial methodology.
