Court case over test tube child

Photo: PantherMedia / Scanpix

The parents of Anni, a girl born via in vitro fertilization, wanted her to live in a harmonious blended family, but now it is for the child protection agencies and court to settle the parents’ problems.

We shall not disclose all details for the protection of the child’s interests.

The story of Jaana and Oleg began without passion – they did not even know each other before they had a child via in vitro fertilization. Jaana and Oleg both are homosexual. They were brought together only by a desire to have a child they could both love. Once they had found each other thanks to acquaintances, the common project was started.

The plans were made before Jaana became pregnant. According to Oleg, they had a verbal agreement that the child would initially spend more time with the mother, but that the mother and the father would share Anni equally after she becomes six months old. Both agree that there would not have been any project without the deal. Two homes were prepared for the child: both were fitted with a bed, clothes and diapers were bought. Two sets of everything. “It was all based on our common goodwill and cooperation,” Oleg said.

Oleg was in the hospital as Anni was born. It seemed to go as planned, the dream of both partners had come true. Oleg often took care for Anni at Jaana’s place. Jaana was free to work besides taking care for the baby.

But this harmony only lasted a few months. Then the first disagreements emerged. It appeared that Oleg and Jaana had quite different ideas of how to bring up Anni. An example: while the woman favored a stricter sleeping regimen, the man was more liberal.

The differences soon began to undermine the joint project. Jaana set the dates and times when Oleg could be with Anni. A couple of times per week was not enough for Oleg.

Greater affinity with the mother

Harmonious cooperation was soon replaced by absence of any relationship. Even before Anni’s first birthday her parents already communicated only via lawyers. Furthermore, Jaana appealed to the local government’s child protection agency. While she blamed Oleg for wanting to see the child too frequently, Oleg demanded keeping the agreement – both should equally participate in bringing up the child.

Instead of the parents’ emotional statements, let us concentrate on facts supported by documents. Jaana was unwilling to make the story public in any form and refused to give explanations, despite our assurances of protecting her and the child’s identity.

“As the child’s mother my first obligation is to protect my child’s safe future and privacy. I do not want her life to be ruined by having it discussed publicly in the press. This can in no way be in the child’s interest”, Jaana commented. She added that Oleg is making false statements about her, but she cannot counter them due to the closed court case in progress. Jaana did not consider her case exceptional.

Oleg says that he has appealed to the public only because he as the biological father has no other option. He claims to blame not the mother but the system, which favors mothers in child custody cases, according to him. Only women can give birth and that is why the relationship between a woman and a child is automatically closer – that is what the child protection services told him. But in Oleg’s opinion the system is based only on traditions and fails to adequately consider the real situation, including gender roles, willingness and ability to commit to the child and the actual closeness between the parent and the child.

The child protection officials of the local government reject accusations of impartiality but admit that Jaana and Oleg have an extraordinary relationship, since “female persons bear children in their womb and give birth to them”.

“The nine months spent in the womb and the process of giving birth create the unique relationship between the mother and the child and explain why the closeness of the mother is important to the child in the first years of life”, the child protection officials say. They assure that during the first year of life the child has a symbiotic relationship with the mother, i.e. considers itself and the mother as the same person. This separation from the mother should take place gradually.

Oleg claims that he felt a strong affinity with Anni and its weakening has been Jaana’s decision, not his. The man is disappointed, since only the mother had initially the right to decide how frequently toe father could see the child, if at all, and whether he could take Anni to see her grandparents or stay overnight with the father.

Instead of a harmonious blended family, Jaana and Oleg are now going to court to argue over custody and visiting rights. The court has already extended Oleg’s visiting rights, although Oleg’s wish that Anni would spend an equal time in either parent’s home is almost impossible, considering Estonia’s court practice. The court believes that the child should have one home.

“Court rulings allowing the child to spend equal time with both parents are extremely rare”, said Janar Filippov, spokesman of the courts. He said that it could be arranged in case of a child of preschool age, but it would be undesirable in case of a schoolchild.

“The general opinion is that a child needs one home in the interest of stability”, Filippov added. The child’s spending equal time with either parent presumes that the parents live in close vicinity and have good relations.

Fathers have weaker positions

Parents living separately usually decide on their own where the child should live. If they fail to agree, court will grant one of the parents the right to decide where the child should live, while the parents’ joint custody rights will remain unaffected.

But in Oleg’s opinion this places the father automatically in a weaker position than the mother. The constitution may stipulate that people are equal regardless their sex, but court would nevertheless decide that the affinity between Oleg and Anni would not be equal to the natural relationship between the mother and the infant. Thus, in his opinion, the system has a built-in presumption that he as the biological father will remain a holiday parent against his will and yield Jaana greater rights.

According to Filippov there is no statistics about whether custody right over children is predominantly granted to mothers or fathers, but it is certainly not granted to mothers exclusively. The close relationship caused by pregnancy and giving birth may be decisive in case of infants, he stated. Otherwise affinity amounts to only one aspect of making the decision.

“In case of an older child the affinity depends on who has the primary custody right. It is the relationship itself what matters, not whet it is derived from”, Filippov added.

Liisa-Ly Pakosta, Commissioner for gender equality and equal treatment, is also aware of Oleg’s and Jaana’s case. “We handled the case, but due to the privacy law I can only say that we considered the situation serious enough to refer it to the Social Insurance Board child protection unit”, Pakosta said.

The Social Insurance Board is somewhat aware of the affair but cannot discuss it in detail. “I can say that we have never handed such conflicts before”, said Kadi Lauri, head of the Social Insurance Board child protection service’s advisory department for local governments.

The greatest victim of the parents’ disagreement is Anni, who was supposed to be born to a harmonious blended family. In the opinion of the child protection officials it could be predicted that Anni would be born into a conflict, even though the parents had never intended it. The reason was that the parents lived separately even before the birth, each according to their world-view, desires, plans and ideas about Anni’s life.

The father claims that the Anni has not been born into a conflict, he still believes in the possibility of harmonious shared parenthood and that even divorced parents could bring up a child in two different homes. He claims to know about other couples who have had children based on an agreement.

Comments

Liisa-Ly Pakosta, Commissioner for gender equality and equal treatment

The rights and obligations of fathers and mothers, according to the Gender Equality Act, the Family Act and the Child Protection Act, are precisely equal. If the family for some reason cannot agree on the time and manner of bringing up the child, officials and court settlement or reconciliation will interfere primarily in the interest of the child.

The problem is further aggravated if the judges have prejudice, e.g. that the child has greater affinity with the mother. We have been approached by fathers having problems with restrictive prejudice. Younger officials have told us that the universities taught them that way for a long time – that the child should be always granted to the mother, since the father can begin anew.

We receive appeals from fathers, who have been told by officials that the mother would win anyway, and the father should not try at all. Or employers grant free days only to mothers and not to fathers. We are not dealing with conflicts within families but raising the awareness that the decisionmakers should treat the parents equally and view the father as important a parent as the mother.

If the parents are not violent or calculating and uncaring or otherwise criminal, the child would benefit from communicating with both parents and grandparents. Competent child protection officials can determine the power struggle or violent tendencies of the mother or the father and make a fair decision.

The importance of the father should be certainly more emphasized in Estonia. The setbacks of some men only because of their sex will discourage other fathers from making greater effort.

Of course, there are many tragic stories when the family has to be rescued from a violent or heartless father, but it would be quite wrong to think that equally cruel mothers do not exist.

Anneli-Liivamägi-Hitrov, board member of the Estonian Association of Conciliators.

Living in two homes is possible of the parents arrange it and have normal relations. This requires communicating. If they have decided to live separately, one has to accept it and wish the best to the other party. As parents they have to bring up the children. What is happening between them should not affect the children.

Home means to a child above all the parents – a child’s home is where the parents live and where the child feels safe. The parents must have some willingness to reach an agreement and discuss the arrangements. They come to me to find compromise how the child could sufficiently communicate with either parent.

Children spend in most cases more time with their mothers, since they have been with her from infancy and the father has been working for most of the time. Their contact with the father is reduced – they remain more in the role of a holiday father.

If a child is alienated from the father, he will remain the holiday parent. Much depends on the parents’ cooperation and the father’s involvement very much depends on the mother. The mother should consider the interests of the child rather than her own.

It is regrettable that parents are fighting for equal custody rights but having achieved it they discover that they lack resources, time or opportunities to deal with the child, since they have to go to work.

They often fight their own fights. The child is not a party to the fight, but mainly the loser. One should think about what is the best way to arrange the child’s life.

If either parent is out for themselves (e.g. is offended and avoids dealing with the other parent), conciliation cannot help unless they are willing to improve the child’s life and give up concentrating on their conflict. In such cases it is only for the court to decide with which parent the child should live and what are the visiting rights.

Kadi Lauri, head of the Social Insurance Board child protection service’s advisory department for local governments.

The custody and visiting rights of a child and the principles of handling the child are stipulated in the Family Act and Child Protection Act.

Either parent has equal rights and obligations towards their child and this applies even if the parents are not living together. Both parents have equally important role in bringing up the child and developing affinity with the child.

All decisions concerning children must be made in consideration of the child’s interests. In order to understand these interests, all factors affecting the child and its welfare and other important information must be determined, to judge the effect of the decision on the parents. We have drafted guidelines of assessing cha child’s welfare for the municipal child protection officials, which allow for complete assessment of the child’s welfare.

Supervision of the municipal child protection officials’ activities is generally carried out by the local government. The Social Insurance Board’s child protection department supports the officials in solving the cases and finding the best solution for the child and the family. People appeal for advice to the child protection department for a number of reasons, often regarding custody rights.

Child protection officials can participate in advanced training events organized by the National Institute for Health Development.