The Law Must Keep up With Same-Sex, Modern Families

In the appeal case of Re G (Children) [2014] EWCA Civ 336, Lady Justice Black has highlighted the need for the law to keep up with same-sex, modern families.

The case involved a residence battle between two mothers, one the genetic mother and the other the gestational mother.

The appeal concerned twin girls who are now 5 years old. The genetic mother donated her eggs so that the gestational mother could get pregnant.

Despite the biological link, the genetic mother did not have Parental Responsibility for the twins as she did not actually give birth to them. By contrast, the gestational mother has Parental Responsibly by virtue of the Human Fertilisation and Embryology Act 1990 Section 27(1).

The parties separated in autumn 2012. The genetic mother applied for a shared residence order on the basis that she would then share Parental Responsibility for the twins. Anyone with a residence order or shared residence order is automatically granted Parental Responsibility. The first instance judge refused to grant a shared residence order and the genetic mother appealed the decision.

The appeal was allowed and Lady Justice Black highlighted the importance for the law to keep up with the different ways in which families are formed. She also said that it may have been of help to the trial judge if the parties had asked her to consider the body of cases dealing with the concept of parental responsibility in “new situations”. Lady Justice Black was of the view that the trial judge had failed to give sufficient weight to the fact that the appellant mother was the biological mother to the twins.

The case has now been submitted for a complete re-trial.

There has been a stark increase in the number of same-sex female couples receiving IVF treatment, up by a third in the last 12 months. The Human Fertilisation and Embryology Authority’s (HFEA) latest report, ‘Fertility treatment in 2012: Trends and Figures’ brings together statistics on fertility trends in the UK. This report also demonstrates that there has been a 20% increase in donor insemination.

The numbers are rising partly because of the changes in the Human Fertilisation and Embryology Act in 2008 which removed the obligation for fertility clinics to consider a child’s ‘need for a father’ before offering treatment, and enabled lesbian couples conceiving together to be named as joint parents on birth certificates.

The increase in treatment may also be a direct result of the ability for same-sex couples to form Civil Partnerships and as of 29 March 2013, marriages. The UK is now a good place to start a family together as a same-sex couple.

That said, an element of family planning is needed for any same-sex couple thinking about having children. If a lesbian couple both want to be legal parents, they need to conceive through a clinic or have entered into a civil partnership or got married before the conception. If a couple conceive at a clinic via a donor, the donor’s details will only be available to the child at 18 years of age. If however, a donor is known to the couple, they may wish to be involved in the child’s life. If the relationship between the couple or between the couple and the donor breaks down, there can be complex legal problems.

We would suggest approaching a solicitor for some advice before conceiving within a same-sex relationship.

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