Gestational parents, non-genetic mothers, siblings with different mothers: family law in a quandary

Orig.src_.Susanne.Posel_.Daily_.News-dna_baby_wombG (Children), Re [2014] EWCA Civ 336 (25 March 2014) – read judgment

This interesting family dispute demonstrates the tension between legal parenthood and biological parenthood in times when both legislation and common law are struggling to keep up with the possibilities offered by reproductive medicine; where a child can be born with no biological relationship with its gestational parent, or, conversely, where children can be borne of two separate mothers and yet be full genetic siblings.

Background

The appellant and respondent had been in a lesbian relationship for some years.  Following unsuccessful attempts by the respondent to conceive using her own eggs, the appellant agreed to donate eggs so that the respondent could become pregnant. She donated eggs which were fertilised with sperm from an anonymous donor. The embryos were implanted in the respondent who carried and gave birth to the twins.

Some embryos remained and one was used to enable the appellant to carry and give birth to her daughter, D, in November 2012.  The appellant is therefore genetically the mother of D and the twins and the children all have the same father; biologically, they are full siblings. The appellant is also, in law, D’s mother. However, she is not the twins’ mother. By virtue of section 27(1) Human Fertilisation and Embryology Act 1990, the respondent is the twins’ mother.

The dispute

In the years since the birth of the twins, the appellant and respondent had very different views as to their relationship with the children and each other, each of them describing herself as their true “mother”. In earlier care proceedings, a contact arrangement was agreed between the parties whereby the respondent had main parental responsibility with an obligation to provide information to the appellant about education and medical issues. In a hearing before HHJ Black in July 2013, the judge found that this limited delegation of parental responsibility was sufficient to recognise the importance of the appellant’s involvement in the children’s lives. She found that since there had been no question at any point of the respondent sharing parental responsibility of D (the appellant’s) child with her it seemed to her, on that basis alone, to be wrong that the appellant should expect to share responsibility for the respondent’s children.

The appellant argued that the judge should have acceded to her request for a shared residence order for the twins. It was submitted that she had failed to give weight to some important features of the case, including that the appellant was the biological mother of the twins, that she had cared for them for four and a half years, and that she would be taking a parenting role in respect of them for the rest of their lives.

The court’s decision

Black LJ, giving the judgment of the Court, observed (in something of an understatement) that “Over the years, the boundaries of legal parenthood have expanded.” Indeed it has, to take account of the medical opportunities now open to women to bear offspring neither of whose gametes are genetically theirs.  Furthermore the law seeks to provide for the situation where two women are in a civil partnership so as to recognise parenthood vested in the non-bearing partner, whilst denying the biological father the status of a parent. The policy underpinning the relevant sections of the Human Fertilisation Embryology Act 2008  are, in one judge’s words, “simply to put lesbian couples and their children in exactly the same legal position as other types of parent and children” (Baker J in Re G; Re Z (Children: Sperm Donors: Leave to Apply for Children Act Orders). Here, Black LJ surveys the various authorities which are useful in demonstrating how the courts have approached the issue of parental responsibility with single sex families. In all of those cases, needless to say, what dictates is not the interests of the adults but the welfare of the children.

In these particular circumstances however the Court of Appeal felt that the judge below had given insufficient consideration to the appellant’s importance as the children’s genetic parent and as the mother of their full sibling, D, with whom they will form a relationship through contact.

The judge’s order was quashed and the case remitted for a fresh hearing.

Comment

The underlying problem in these kinds of cases how to provide appropriate protection to both gestational mothers and genetic parents; although the courts are at pains to stress that their rulings on the issue are for a specific case, each case sets a precedent of sorts for the interpretation of existing laws in future disputes. Out of interest, it is worth noting that the Irish Supreme Court has recently heard an appeal against an earlier decision that ruled that the genetic parents of twins born to a surrogate are entitled to be registered as the children’s legal parents on their birth certificates. There is no equivalent to the Human Fertilisation and Embryology Act in Ireland and at the appeal, which lasted 4 days, it was argued on behalf of the State that a child’s legal mother is the woman who gives birth to the a child and that it was not possible to have two mothers concurrently.  Judgement was reserved (6 February) and it is not known when it will be handed down.  Whatever the result, the ruling of the seven-judge court may well dictate whether or not Irish laws need to be revised in the light of medical advances with respect to parenthood.

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