Pride Angel

The news has recently highlighted a number of high profile cases involving disputes within lesbian families and 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.

As with any relationship breakdown, issues to be dealt with include division of the finances, any civil partnership dissolution and with whom any children will live (as well as contact with the non-resident parent). But these types of divorce cases have a more complex dynamic, with difficult legal and social questions arising from the mismatched biological (and often legal) status of the two female parents.

To date there has been very little judicial guidance as to how much weight the family court will place on the importance of being a birth mother in divorce proceedings, and whether in such cases the birth history and biological link should be considered more important than the relationship between the non-birth mother and the child.

Of course every case is unique, but the two main cases so far where the court has considered and explored these issues in principle make for very interesting reading.

The first case was that of Re G [2006] UKHL 43 which involved a difficult dispute about where the children conceived by a lesbian couple through artificial insemination should live following their separation. The High Court and Court of Appeal ruled that the non-birth mother should have primary care of the two children (mainly because the birth mother had behaved badly and removed the children to Cornwall deliberately to obstruct her former partner’s relationship with the children). However, in a landmark judgment the House of Lords ruled that the lower courts had not given sufficient weight to the fact that the birth mother was the biological mother of the children and ordered that the children should continue to live with her. The House of Lords expressly stated that the lower courts had placed too much weight on the behaviour of the birth mother and not enough on the biological basis of her relationship. This was a ‘significant consideration which was of importance’. Being the birth mother is, it seems, significant.

The more recent case of T v B [2010] EWHC 1444 (Fam) involved a lesbian couple who were not civil partners but had lived together for many years and had undergone fertility treatment to conceive a child together. Once the child was born they both undertook the role of parents. Although the law at the time did not recognise the non-birth mother as a legal parent, she sought – and was given by the court – parental responsibility, which meant she had full legal authority to take decisions as a parent and to be involved in her child’s care. Following separation the birth mother applied to the courts for financial provision from the non-birth mother. The court ruled that as the non-birth mother was not a legal parent she had no financial obligation despite the fact that she had to all intents and purposes been a ‘parent’ to them from the very start. The court was somewhat constrained by the wording of the law (and its frustration was evident) but it was clear in this case that whether you were a birth mother or not was deeply significant.

When the court are considering cases involving disputes about care arrangements for children, the court has a range of factors it has to take into consideration. These include: the child’s age, sex and background; their physical, emotional, educational needs; the effect of any change in circumstances; their ascertainable wishes and feelings; any harm the child has suffered or is at risk of suffering and how capable each parent is in meeting the child’s needs. The welfare of the child will be the court’s paramount consideration and any decision made by the court will be based on what the court considers to be in the child’s best interests. In practice this gives a lot of flexibility, although it is clear that the court is inclined to place weight on the importance of the biological link with the birth mother. In relation to child maintenance questions, this bias is more institutional, with clear legal rules which make only legal parents (and their spouses) financially responsible.

On 6 April 2009 the law in the UK changed to allow two mothers to be named on the birth certificate, recognising them both as the legal parents and giving them both financial responsibility for their children. It is notable that both of the birth mother vs non-birth mother cases have involved children born before this legal change. Whether or not the new law will give greater weight to the non-birth mother’s position waits to be seen (although this will certainly be the case in relation to financial questions). Things are likely to be muddied further by the increasing blurring of the lines between birth and biological parenthood for lesbian couples. We are certainly seeing more egg swapping cases, where an egg has been taken from the non birth mother, fertilised and then transferred to the birth mother. Where parents in these situations separate, will the birth mother or the biological mother be the one with the upper hand?

Same-sex divorces are undoubtedly legally complex where children are involved. In a dispute over a child within an alternative family structure, an argument often run is the importance of the biological link, and the genetic identity of the child. With changes to the law and even more complex family structures emerging, it will be interesting to see how the court responds.

Article: by Sarah Wood-Heath of NatalieGambleAssociates; originally published 8th May 2012 www.bionews.org.uk

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.

Article: 20th March 2012 www.bionews.co.uk

Read more about the law when using a known sperm donor at www.prideangel.com

Pride Angel is delighted to announce that our leading fertility and parenting lawyer Natalie Gamble has now moved premises.

Their new home is nestled within beautiful offices overlooking the New Forest with fabulous countryside around them, but close to the mainline station at Salisbury. Previously known as Gamble&Ghevaert, they have now changed their name to Natalie Gamble Associates and are now a team of five looking for a further lawyer.

Natalie Gamble will continue to be at the forefront of pioneering fertility work with families who need help unraveling the law in the UK within a global context. They are immensely proud of their track record which now stands at over 10 years of grappling with the law and making changes to help families get the right structures in place to secure their family as a unit.

Visit Natalie Gamble Associates website, now at www.nataliegambleassociates.com or contact them for further information.

Read more about fertility law at www.prideangel.com

A couple who lost custody of their baby daughter to her surrogate mother have been ordered to hand over more than £500 a month maintenance for the child.

Today they spoke of their disgust that they would be forced to pay for someone else to raise the child they will never see. The father, a leading chef, said the decision by the Child Support Agency ‘added insult to injury’ and that he would appeal against it.

He and his wife, who had suffered six late-stage miscarriages including four sets of twins, used a surrogacy website to find a single mother of two on benefits who was willing to carry the baby they longed for. They made an informal agreement to pay her £10,000 in expenses.

But halfway through the pregnancy she decided she wanted to keep the baby and a judge ordered that the woman, who was also the biological mother, could keep the child despite her earlier promise.

The couple, referred to as Mr and Mrs W to protect the child’s identity, later relinquished their contact rights because they said it would be too difficult emotionally and that it was unfair for the baby to be split between two homes.

They allowed the surrogate, known as Miss N, to keep the £4,500 they had already given to her. But now Mr W must also pay £568 in child support every month as the biological father of the eight-month-old girl. ‘She cannot say, “I am keeping your child and now you must pay for it”,’ he said.

‘She has taken away our baby and now she is taking our money. To me, that is completely wrong. The CSA has made the decision as if we were a couple who had broken up, but our situation is unique.

‘We were not having a baby together, we had agreed for her to carry a child for myself and my wife. ‘I have written to Downing Street and my MP to call for a change in the law.’

Mr W said he now suspected it may have been Miss N’s plan all along to have a child with a wealthy man from whom she could claim child support over the next 18 years.

‘We should have seen the signs when she started asking for more than we had agreed. I don’t think this was ever about her suddenly wanting to keep the baby, I think this was about getting an income.’

The chef said he would feel more comfortable paying for vouchers which could be redeemed on food and clothing than money which would not necessarily go towards the child. ‘If I need to pay £500 a month because otherwise the child will be living in poverty then that is another reason why the baby should be with us. We would have given her all the things she needed.’

Mrs W, who is in her late 30s, had cancer of the womb in her 20s and complications from surgery meant it was difficult for her to carry a baby to full term.

After she and her husband contacted her via a website, Miss N agreed to be inseminated with Mr W’s sperm, meaning they were both the baby’s biological parents. But the relationship between the two parties turned sour after Miss N apparently began asking for more money.

Three months before the baby was due, she sent a text message to the couple to say she was keeping the child. In July last year she gave birth to baby T and a bitter six-month custody battle ensued.

Miss N accused Mr W of being violent towards his wife, which the couple denied. They accused Miss N of neglecting her sons and of living in a filthy home. In January, in a rare case, Miss N was awarded custody after a judge deemed it was in the child’s best interests because there was a ‘clear attachment’ between the mother and daughter.

At the time, Mr Justice Baker warned that the risks of entering into a surrogacy agreement were ‘very considerable’. Surrogacy agreements are not legally binding in court, even with a formal written contract.

It is illegal to profit from surrogacy but ‘reasonable expenses’ are permitted.

Article: 12th April 2011 www.dailymail.co.uk

Read more about fertility and parenting law at www.prideangel.com

Surrogacy has been around for many years and disputes rarely arise. There have only been a handful of published cases in the English courts where a surrogacy arrangement has gone wrong. However, the recently published case of TT (a Minor) [1] received national press and radio coverage, focusing on Mr Justice Baker's warning about the inherent risks of surrogacy, awarding care of the baby to the surrogate mother and yet again putting surrogacy in the media spotlight.

The case of TT (a minor) involved a woman who met a married couple over the internet and agreed informally to become a surrogate mother for them, conceiving by private arrangement using her own egg and the intended father's sperm. The agreement was not set up by one of the UK's not for profit surrogacy agencies and so the parties did not have the benefit of advice, counselling and support that such agencies routinely provide. The arrangement also followed a history of dealings with several internet surrogacy sites, the facts of which were disputed by the parties. The parties' relationship broke down during the pregnancy and the surrogate mother had a change of heart and decided to keep the baby. The intended parents then applied to court for a residence order. The baby girl was five months old when the court gave judgment and the intended parents had had only limited contact with her since birth.

The court's decision to award care to the surrogate mother was guided by the paramount consideration of the baby's welfare. This decision was based on the close attachment formed between the surrogate (and biological) mother and the baby, the ongoing breastfeeding and the risk of emotional harm if the baby was moved into the care of the intended parents in the stark manner the intended parents proposed. In particular, the court expressed concern about the intended parents' ability to meet the baby's emotional needs longer term and their lack of insight as to the importance of the baby girl's relationship and close attachment with the surrogate mother. Mr Justice Baker went on to highlight the risk that the '...natural process of carrying and giving birth to a baby creates an attachment which may be so strong that the surrogate mother finds herself unable to give up the child'. It was therefore a fact based decision and does not set a binding precedent, although it will inevitably strike an uncomfortable note amongst prospective intended parents.

The case of TT (a minor) highlights the advent of internet surrogacy sites that make informal surrogacy agreements possible, which leads to the question whether there would have been a different outcome if the parties had received support and advice from a surrogacy agency, together with counselling or some form of regulation earlier in the process. However, the fact that there have been so few published cases of surrogacy arrangements which have gone wrong in the UK is testament to the care and attention with which these arrangements are usually set up and approached by intended parents, surrogates, surrogacy agencies and, where conception takes place at a licensed clinic, by counsellors and medical professionals who have a duty to consider the best interests of any future born child.

Over the last ten years, there have been only two published judgments where the English courts have had to untangle disputed surrogacy arrangements. The case of Re W and B and H (Child Abduction: Surrogacy) [2] involved a surrogacy arrangement between an English surrogate and US intended parents who entered into a binding surrogacy agreement in California. During the pregnancy the surrogate mother had a change of heart and returned to the UK where she gave birth to twins. The court eventually determined that the babies should be returned to California, following international abduction proceedings brought by the US intended parents. The case of Re N (a Child) [3] involved a dispute over a surrogate born child between the surrogate parents and intended parents, where the court eventually awarded care of the then 18 month old child to the intended parents. The outcomes of these cases indicate the wide-ranging and fact based approach taken by the court.

The question of how to treat and regulate surrogacy arrangements raises many issues, and the UK has so far adopted a cautious middle ground approach allowing surrogacy on a restricted basis, banning commercially arranged surrogacy and making it a criminal offence for prospective surrogates or intended parents to advertise. Public policy in the UK also prevents the use of binding surrogacy contracts. Surrogacy arrangements are therefore based on trust and goodwill in the UK and the intended parents must apply to court for a parental order post birth in order to obtain full parental rights for the child. This can only be granted with the full consent of the surrogate mother and, if married, her husband. Other countries take a different approach, with many European countries banning surrogacy altogether, for example France and Italy. However, some US states, India and Ukraine permit surrogacy on a commercial basis where surrogacy contracts are legally enforceable and require the surrogate mother to hand over the baby to the intended parents at birth.

The media coverage of the case of TT (a minor) [1] and growing interest and globalisation of surrogacy brings new challenges for us all to grapple with. There is nothing new about surrogacy, but the increasing numbers of people seeking to create families through surrogacy in the UK and abroad, as well as the power of the internet and celebrity endorsement by the likes of Elton John and Nicole Kidman has inevitably captured public imagination and therefore puts an increasing strain on the current legal system. However, while it remains rare for surrogacy arrangements to end in dispute, there will continue to be occasions where the surrogate mother changes her mind and seeks to keep the baby, which will continue to bring into focus the inherent risks of a UK surrogacy process based on trust and goodwill that was designed over twenty years ago to cater for a small number of altruistic cases involving friends and family.

Article: by Natalie Gamble and Louisa Ghevaert www.gambleandghevaert.com

For more about co-parenting, sperm donation, gay parenting and lesbian parenting visit www.prideangel.com

The High Court has decided that a lesbian (non birth) mother does not have to financially support the ten year old child she conceived together with her partner. In a landmark decision, the court has ruled that even though the mother was awarded ’parental responsibility’ for her child and the right to full involvement in her child’s care, she cannot be held financially responsible because, at law, she is not a ‘parent’.

The decision highlights the complexity of concepts of parenthood as they apply to same sex parenting, and the problems that arise when relationships break down.

It is not the first time that there have been difficulties over maintenance and financial responsibility. Sperm donor Andy Bathie (represented by G&G partner Natalie Gamble) was pursued for maintenance by the CSA after the lesbian couple he donated to split up, because (as a biological father who had donated outside a licensed clinic) the law treated him, rather than the lesbian non-birth mother, as the children’s other ‘parent’.

The case also highlights why it is so important for lesbian couples who have children together to ensure that they secure their legal position fully as parents. Lesbian non birth mothers are now automatically treated as the second ’parent’ of any child they conceive with their partner, if the couple are civil partners at conception and/or the couple conceives at a UK licensed fertility clinic.

The new rules apply to children conceived after 6 April 2009 but are not retrospective. For couples who have children together who were conceived before 2009, they will need to go through an adoption process to ensure that both partners (and no one else) are share responsibility fully, both legally and financially.

Read more information about how the law applies when using a using a known donor

Article: 11th July 2010 www.gambleandghevaert.com

We are delighted to announce that Natalie Gamble and Louisa Ghevaert of Gamble and Ghevaert LLP have agreed to support the Pride Angel community, giving legal information and online support to our members.

Natalie and Louisa are pioneers of fertility law in the UK and the founding partners of Gamble and Ghevaert LLP, the first and only law firm in the UK to specialise in fertility and parenting law. Gamble and Ghevaert is widely recognised as having the UK’s leading legal expertise on donor conception, co-parenting, surrogacy and fertility treatment, and we are delighted that Natalie and Louisa have agreed to contribute to Pride Angel.

Natalie Gamble, widely known as Britain’s leading fertility lawyer, was a prominent commentator on the Human Fertilisation and Embryology Act 2008 and a passionate champion of legal rights for same sex parents conceiving together. Her work won her a nomination by Stonewall as their Hero of the Year in 2008, and she has been recently heralded by lesbian magazine Diva as one of the UK’s 50 most powerful gay women.

Louisa Ghevaert is internationally recognised as a leading expert in UK fertility law, including same sex parenting, donor conception, co-parenting and international surrogacy. She is involved in national policymaking, writes for leading journals, and was recently invited to be a leading international speaker at the American Bar Association’s continental conference in Montreal.

“Increasing public knowledge and understanding of fertility and parenting law issues is all part of our passion for our subject” say Natalie and Louisa. “The law can be incredibly complex and fast-moving and it is important for anyone starting a family in more unusual circumstances to get to grips with the legal side of things. We are committed to helping people to become families, and to helping them avoid legal difficulties and complications wherever possible. Making good quality information freely available is all part of that goal.”

Pride Angel has today launched new Fertility Law pages, with up to date information (written by Gamble and Ghevaert LLP) on the law for donor recipients, co-parents and donors, and with links to other useful sources of information.

Natalie and Louisa have also kindly agreed to answer questions posted by Pride Angel members on our online forum, so please do feel free to start posting your legal questions.

For more information about Natalie, Louisa or Gamble and Ghevaert, visit Gamble and Ghevaert’s website, which also contains a wealth of resources on fertility and parenting law.