14 September 2015
A UK appeals court recently granted an egg donor, A, a new hearing in her petition for a shared residency order for the twins conceived using her ova (see BioNews 748). A was seeking the shared residency order as a means of acquiring parental responsibility for the twins.
At the time of donating her ova, A was in a relationship with R, the twin's legal and gestational mother. A and R's relationship fell apart, and R formed a new relationship with C. Although the twins resided with R, A maintained an active role in their lives. However, following a series of disputes about contact and residence, A sought a shared residency order. At trial the judge ruled against A, stating that it would be inappropriate to elevate A's status in that manner.
However, on appeal, the court ruled that the trial judge had erred, in part by failing to properly weigh the importance of biological ties when determining whether such an order would be appropriate. In the appeal court's decision, Lady Justice Black stated: 'I think there needed to be consideration given also to the appellant's importance as the children's genetic parent.' This is not to suggest that genetic ties will automatically entitle a claimant to parent responsibility. Later in the ruling, Justice Lady Black agreed that 'the mere fact that the appellant is a genetic parent and/or that she played a parental role would not dictate the making of a shared residence order'.
That the appeals court found relatedness to be a relevant factor at all highlights some interesting tensions between how different parts of the law view parenthood and parental responsibility. Although the HFE Act clearly distinguishes biological parenthood from legal parenthood, under The Children Act decisions about parental responsibility are to be made on the basis of the welfare interest of the child. As this case demonstrates, if the law includes biological ties as relevant to a child's welfare, then parents who use donor gametes are at increased risk of having gamete donors interfere in their family life even if reproductive procedures are performed under the auspices of a licensed clinic. This makes the preceding case different from other recent cases where gamete providers have been found legally responsible for their genetic children (see BioNews 680 and BioNews 437).
Of course, as Lady Justice Black made clear, genetic ties alone are insufficient justification for a parental responsibility order (or shared residency order) against the wishes of a child's legal parents. The circumstances where parents are at risk of having gamete donors succeed in making this kind of claim is thus restricted to cases where there is a confluence of factors in addition to genetic relatedness, such as a history of a caregiving, that together suggest that such an order is appropriate.
But herein lies the problem. If genetic ties add weight to a claim for parental responsibility then we could imagine this case unfolding along these general terms. The court might find that A developed a relationship with the twins that, on its own, was not substantial enough to merit a shared residency order. However, because of the added weight of the genetic connection, the court might find that a shared residency order is in fact merited.
The possibility of this kind of result is problematic because it creates an incentive for parents using donor gametes to restrict the depth of the relationship they permit their children to form with their gamete donor. If parents want to prevent gamete donors from having a legal right to access and authority over their child, they must in fact ensure that the depth of relationship their child forms with the donor is lower than that sufficient to avoid this consequence in the case of a genetic stranger.
The tension here lies in the fact that the relevance of genetic ties in disputes over parental responsibility is legally justified by the welfare interests of the child; presumably the court's view is that children benefit in a special way from having contact with their genetic parents. Paradoxically this very fact results in a legal incentive for individuals who use donor gametes to restrict the formation of relationships that are thought to be especially beneficial for their children's welfare.
There is of course lots of room to question the welfare benefit children get from contact with gamete donors. But putting this question aside, there is a real possibility that this ruling will have a chilling effect on the relationships parents allow their children to form with gamete donors. If we decide that such relationships are in fact beneficial, what might be best for children's welfare is for the law to downplay the importance of genetic ties so that the formation of these relationships is not disincentivised.