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King's College London - Health: More than a medical matter






Lesbian mums in dispute: fertility law, child maintenance and what makes a parent

08 November 2010

By Natalie Gamble

Partner at Gamble and Ghevaert LLP (www.gambleandghevaert.com)

Appeared in BioNews 583
A lesbian couple who had conceived a child together through donor insemination at a UK clinic recently ended up in the High Court after their relationship broke down. Their dispute involved a ten-year-old child, and the issue was whether the non-birth mother (who the court had already given legal decision-making status as a parent) should be ordered to make financial provision for her child.

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.

 

SOURCES & REFERENCES

RELATED ARTICLES FROM THE BIONEWS ARCHIVE

05 November 2012 - by Joseph Jebelli 
A man who donated his sperm to a lesbian couple 13 years ago in a private arrangement has been ordered to pay child support. He has called on the Government to make changes in the law so that private sperm donors are treated fairly.... [Read More]
18 June 2012 - by James Taylor 
As Britain's leading lesbian, gay and bisexual equality charity, Stonewall welcome the decision by the National Institute for Health and Clinical Excellence to update its fertility guidance to recognise recent changes in the law that will affect lesbian and bisexual women. The guidance, out to consultation, explicitly includes same-sex couples as an eligible group for fertility treatment... [Read More]
09 January 2012 - by Antony Blackburn-Starza 
A Florida court has granted equal parental rights to two lesbian women who created a child using the eggs from one of the women, while the other carried the baby to term. It ruled that egg donors may acquire parental rights to children resulting from their gametes under the Florida and US Constitution.... [Read More]
19 December 2011 - by Ayesha Ahmad 
Lesbian parents in South Australia who conceive through IVF can now both be registered on their child's birth certificate, after a new law passed to recognise female, same-sex couples as the co-parents of babies came into effect.... [Read More]

21 June 2010 - by Dr Vivienne Raper 
The ex-partner of a lesbian cannot be forced to pay child maintenance for the couple's donor-conceived child because they never entered a civil partnership, a High Court judge has ruled... [Read More]
30 April 2010 - by Louisa Ghevaert 
Birth certificates have been a hot topic in the UK in recent weeks. There has been much controversy, confusion and misunderstanding, aptly shown by Caroline Gammell's article in The Daily Telegraph newspaper and Colin Fernandez's article in the Daily Mail on 19 April incorrectly hailing the advent of the first lesbian couple to both be named as parents on their baby daughter's birth certificate, born 31 March this year. Lesbian couples have not in fact had to wait until the beginning of April... [Read More]
29 March 2010 - by Ailsa Stevens 
New legislation allowing same-sex couples to become the legal parents of children born following surrogacy will come into force next week. The change to the law means that couples using surrogacy no longer need to be married to be named on their child's birth certificate and is intended to afford unmarried and same-sex couples using any form of assisted reproduction the same rights to legal parenthood. It forms the final stage of the implementation of the UK's Human Fertilisati... [Read More]

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