Should Paternity be Linked to Sexual Intercourse?

Abstract

Although issues of paternity are usually uncontroversial, the use of artificial insemination has required the law to develop rules to determine who is to be considered the father of a child. This paper will look at paternity and the important, but misplaced focus that the law places on sexual intercourse in deciding who should have paternal rights and responsibilities. It is argued that the law could chose between one of three reasonable options for defining who is the father of a child, they are the genetic father, the social father or accept that children have more than one father. Under current Australian law a child can have only one father but determining who the 'father' is depends on none of these factors, instead the laws focus is on whether or not the child was conceived following an act of sexual intercourse or artificial insemination. It is argued that the current approach is misplaced and unreasonable. In developing this argument I will explore the logical implications of the various legal options available.