08 November 2010
Partner at Gamble and Ghevaert LLP (www.gambleandghevaert.com)Appeared in BioNews 583
The story itself of course isn't that unusual - parents separate and divorce all the time and many end up in court arguing over contact or finances. What makes this case interesting is the family was created through fertility treatment and the partner pursued for maintenance was not the biological mother.
The court had to ask whether the lesbian non-birth mother was legally a 'parent' and - specifically - whether her full hands-on parenting involvement in her child's life was enough to make her financially responsible, even though she was not the biological mother.
The answer seems pretty straightforward from a moral perspective. The non-birth mother had been fully involved in her child's care and upbringing, had regular contact with her child, and had successfully (and not long before) applied to court for joint residence and parental responsibility. The law recognised her as a parent for the purposes of decision making and there was no legal father since the child was conceived with anonymous donor sperm.
The child would have only one parent (the birth mother) and considerably less financial security if the non-birth mother was not financially responsible. As the birth mother's lawyers argued in court, it would be 'grotesque' for the court to decide the non-birth mother should not have to maintain a child she had helped bring into the world and was actively parenting.
The law is not always fair. The rules on financial responsibility say explicitly only a legal 'parent' can be ordered to pay. These rules are more black and white than those on matters of contact and parental decision-making, where the family courts often have discretion to act in the best interests of a child.
The High Court ultimately decided it had no power to make the non-birth mother financially responsible, because she was not a biological parent nor otherwise a parent-by-law (she had not, for example, adopted the child). The courts' powers could be invoked to protect her contact and relationship with her child, but not to hold her financially responsible.
One peculiarity of the case is the non-birth mother would have full legal and financial responsibility if she was a man. Since 1991, the law has made special provision for fathers who conceive with donor sperm. They have the same rights and responsibilities as any other father, provided they are married or undergo fertility treatment with their partner. The law is designed to ensure fathers gain full status and recognition as parents, and to prevent them evading their financial responsibilities.
The same is now true for lesbian partners, but only for children conceived after April 2009. There was much fuss in 2008 when Parliament debated new legal rights for lesbian parents. Certain people said enabling a non-birth mother to be named on a birth certificate made it a statement of fiction not a record of fact, and was just political correctness. Yet this change made non-birth mothers legally and financially responsible for their children.
What this case shows is how important those legal changes are, not just for lesbian parents, but for their children. Birth certificates are not merely a record of biology, but are important documents which record legal parenthood status and responsibility. The changes to the law giving lesbian couples joint parenthood from conception benefit children, because they give them two parents who can be held legally accountable where they would previously have one.
The changes were not, however, retrospective. The children of lesbian couples conceived before April 2009 - like the child in this case - may continue to have a parent without legal status and responsibility, unless the family takes positive action to secure their legal position (which can be done through adoption).
It is a shame for this family that it took so long for the law to recognise not all parents through sperm donation are heterosexual and recent improvements only apply prospectively. Looking forwards, we should celebrate our modern fertility laws and their recognition of diverse modern families. We may be leading the world in allowing two mothers to be named on a birth certificate but, as this case shows, it ensures that children are better protected.