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Gay sperm donor wins right to help bring up child conceived with lesbian ex-wife

19 March 2012
Appeared in BioNews 649

The Court of Appeal in London has ruled unanimously that a gay man who fathered a child for a lesbian couple is not a secondary parent, allowing him greater access to his two-year-old son. As the judge who granted permission to appeal wrote, the case raises 'important issues relating to the courts' approach to children born into "alternative families" and the relationship of such children with their fathers'.

In giving the lead judgment at the Court of Appeal, Lord Justice Thorpe ruled that although the lesbian couple desired to bring up the child as a two-parent nuclear family, the father's commitment to the child since birth suggested he was seeking a 'relationship of considerable value'.

The father, known as A, married the biological mother, B, in 2007 in order to appease her family who had difficulties accepting her sexual orientation. There was no intention of cohabitation between A and B.

A had agreed prior to the pregnancy that he would not assert his paternal rights and that the lesbian couple would be the primary carers for the child. They agreed the child would reside with B and her partner, C, and A's role as the biological father would remain secondary. The women were reportedly concerned about the impact any greater role of the father would have on their relationship and that with the child.

The parties' dispute over contact arrangements was heard by the Family Division last July, where the judge upheld the women's case, albeit extending A's contact hours to one meeting per week of five hours. Judge Jenkins expressed reluctance to fracture what is described in the judgment as a nuclear family’.

Lord Justice Thorpe took a different view, saying 'it is generally accepted that a child gains by having two parents'. He added that 'it does not follow from that that the addition of a third is necessarily disadvantageous'.

The court said the arrangements made before the birth of the child did not necessarily hold sway in the life of the child. 'Human emotions are powerful and inconstant', said Lord Justice Thorpe. 'What the adults look forward to before undertaking the hazards of conception, birth and the first experience of parenting may prove to be illusion or fantasy'.

He added that although it had been suggested by the courts that contact should reflect the role agreed by the parties, the primary purpose remains to promote the welfare of the child. He cautioned against B and C's wish to form a 'two parent lesbian nuclear family' without any contact with A. 'Such desires may be essentially selfish and may later insufficiently weigh the welfare and developing rights of the child that they have created', he said.

Lady Justice Black, also hearing the appeal, highlighted the difficulties faced by the courts in this area. She said the courts 'continue to struggle to evolve a principled approach to cases such as this one'. However, she concluded, although guidance would be helpful, all cases were fact specific. 'This is an area of family law in which generalised guidance is not possible', she said.

Sperm donors who donate through an licensed clinic are not regarded as being legally responsible for any children born as a result of their donation under UK law. However, this law does not apply to arrangements made outside licensed clinics.

Lord Justice Thorpe refused to endorse the concept of principal and secondary parents being developed by the family courts, saying, 'it has the danger of demeaning the known donor and in some cases they may have an important role'.

A's case will now go to the High Court Family Division for a judge to reassess the level of contact with his son.

A v B and C [2012] EWCA Civ 285
Family Law Week |  14 March 2012
Court grants gay father more involvement in son’s life
Pink News |  15 March 2012
Father wins appeal after lesbian mothers restrict access to his son, 2
Metro |  14 March 2012
Gay man who fathered child for lesbians wins right to more access
Mail Online |  14 March 2012
Gay sperm donor wins the right to help raise his son
The Times (subscription) |  14 March 2012
10 November 2014 - by Chee Hoe Low 
A six-year legal battle for contact over two girls conceived via known-donor fertilisation has had a 'destructive effect' on the girls' childhood, a High Court judge has warned in his third substantive judgment in the case....
31 March 2014 - by Ari Haque 
The UK's Court of Appeal has urged two women who were in a same sex relationship to reach an agreement over the custody of their five-year-old twins...
5 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....
24 September 2012 - by Tom Barrow 
The High Court has awarded a lesbian couple sole custody rights for a child conceived using donor sperm and a surrogate's egg after a three-year battle over parenthood...
8 May 2012 - by Sarah Wood-Heath 
There have been a number of high profile cases of late involving disputes within alternative family structures. Primarily these concern fathers or known donors seeking more of a relationship with their child than they originally wished for. However, another interesting and sadly increasing area we are witnessing is the breakdown of relationships in two mother lesbian parent families...
20 February 2012 - by Natalie Gamble 
The family court has been making law on known donors, with a number of recent disputes between known sperm donors and lesbian mothers...
13 February 2012 - by Dr Linda Wijlaars 
The Court of Appeal in the UK is hearing a case in which a gay man is fighting for greater parental access to his two-year old son he fathered with his lesbian ex-wife...
19 December 2011 - by Dr Kimberley Bryon-Dodd 
A former US Republican politician has made international headlines after allegedly acting as a sperm donor to multiple women in New Zealand. According to the New Zealand Herald, Bill Johnson provided sperm to at least nine women although official guidelines state that no man should donate to more than four families....
7 February 2011 - by Ben Jones 
An Australian gay couple who entered into a paid surrogacy arrangement has won a legal battle to acquire full paternity rights for the non-genetic father....
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