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

Emma Brockes has written a fabulous major feature for this weekend’s Guardian Weekend magazine on same sex parenting, in which Natalie Gamble Associates are proud to be quoted. The piece tells the story of three modern same sex parent families:

Kellen and Patricia, lesbian mums from New York who have a daughter and are now expecting twins, following egg swapping IVF – Patricia is the birth mother but she carried embryos created with Kellen’s eggs.

Will Halm and Marcellin Simard, gay dads to three children age 15, 13 and 10, who pioneered surrogacy as gay dads in California, where they were the first same sex parents to be named on a birth certificate together, and where Will now represents others as a fertility lawyer.

Andrew Solomon and John Habich, gay dads to a truly alternative family structure – a son through surrogacy who they are raising together, and three more children co-parented with two different mothers.

It is a wonderful picture of the realities of modern same sex parenting, with scenarios we are increasingly dealing with for families in the UK too. All the parents involved talk vividly about the challenges and problems they have faced as gay parents – not the playground prejudice and emotional problems many might expect, but losing legal rights when crossing borders, and grappling with obstructive passport authorities. But the biggest problem of all for alternative families remains surrogacy. As Emma says in her article:

There is, in all this, one glaringly unsubtle problem, and that is surrogacy, which as a percentage affects gay men more than any other group. Commercial surrogacy is illegal in the UK, forcing many childless couples to seek help abroad. When they return, the British government is reluctant to endorse an arrangement that undermines public policy. “English law applies its own rules as to who the parents are, irrespective of what happens abroad,” says Natalie Gamble, the country’s leading fertility lawyer. “So even if you’re named as the parent on a US birth certificate, English law will say that the surrogate is the mother and if she’s married, her husband is the father.”

This can lead to some bizarre situations. In 2008, Gamble’s firm acted for a British couple who had used a surrogacy service in Ukraine. “In Ukraine, the law said they were the parents. But under English law, the Ukrainian surrogate and her husband were the parents. The systems were in direct conflict. The result was that the children had no parents and no nationality. They had no right to stay in Ukraine, and they had no passport to cross any borders. That’s the worst nightmare of international surrogacy.” Gamble persuaded the Home Office to issue the children with discretionary entry clearance, then applied to the high court for a parental order, naming the British couple as legal parents.

We have long campaigned for alternative families, both individually in court, and by arguing hard for changes to the law (including supporting the UK’s legal changes allowing gay dads and lesbian mums to be named on birth certificates together). Why do we do this? Because we believe that parents who love and cherish their children raise wonderful families, no matter what the structure.

With that in mind we want to salute, above all, what Will Halm says about his teenage daughter: “That a test tube baby, from two gay men, is a well-adjusted, smart, polished girl at 15, who is comfortable talking about her family – she is what I would like the world to see. Not the parents who are creating the child, but the children themselves.”

Article: 23rd April 2012 by Natalie Gamble Associates

Read more about gay and lesbian parenting at www.prideangel.com

John Healey MP (the Shadow Secretary of State for Health) spoke clearly and compellingly in the House of Commons this afternoon about the need for proper maternity leave and pay for mothers through surrogacy in the UK (you can watch John Healey’s speech in full here). Introducing a Ten Minute Rule motion, he told Parliament about his constituents, surrogate mother Amy Bellamy and her cousin Jane Kassim. They came to see him at his surgery having been “stunned” to discover that Jane had no legal right to maternity leave or maternity pay to care for the twin daughters Amy had carried for her after Jane was told at 15 that she could never bear children.

Natalie Gamble Associates and Surrogacy UK, are proud to have supported today’s important landmark, the first time this issue has been properly raised in Parliament. As we know so well, for parents who have struggled to build their families through surrogacy (often after a long and difficult journey of infertility), the lack of basic rights to care for their newborn baby can feel like the final insult. It makes no sense and has never been a policy decision; just a gap in the law which has not been addressed. But it is important, as the current position leaves children born through surrogacy in the UK without the legal protection afforded to other children born to their mothers or adopted.

Problems with UK surrogacy law
As well as talking about maternity rights as the urgent first step needed, John highlighted some of the wider problems with UK surrogacy law which need addressing, including:
- the parents not being named on their child’s birth certificate,
- problems dealing with the child’s medical treatment,
- delays in the court system to reassign parenthood, and
- the absolute veto the surrogate and her husband hold, no matter what is in the child’s best interests.

The UK’s surrogacy laws were designed in 1990. After 22 years we live in a much changed world, with more children born through surrogacy and a much more sophisticated understanding of families created in unusual ways. The law on surrogacy was not reviewed properly when Parliament had a chance in 2008 and is overdue for review. John drew attention to other models of surrogacy law, including pre birth orders, which have been much more successful in dealing with surrogacy arrangements in certain US States, and which the UK should look to.

What was said in Parliament?
“Unlike other mothers, Jane is entitled – having her baby through a surrogate mother – to only 13 weeks parental leave unpaid, and then only entitled to it when she and her husband have a parental order in place. That means that for mothers like Jane, they are faced with the choice of going back to work very quickly or indeed giving up their jobs entirely. Today is a day when I hope this House will take the first step in closing this legal loophole.

“As the leading lawyer in this field says: The conditions for a parental order do not place the child’s welfare first, and ultimately children born through surrogacy do not have the same protection as other children to the time to bond with their parents in the early months of life. That is from Natalie Gamble, a leading legal expert in this field and one who has conducted more cases and seen through more parental orders than any other lawyer in the country.

“There are probably around 100 babies born through surrogacy each year, but the number is growing as society is changing and science is advancing. Surely there must be a good case for Britain, like some States in the US, to have a system of pre birth orders. But the first and most important step is to secure basic maternity rights. So that mothers like Jane who have their children born through surrogates have the same rights as any other mothers who give birth themselves or indeed who adopt children.

“It is wrong that thousands of mothers who have their own babies or who adopt have a legal right to 39 weeks maternity pay and up to 52 weeks maternity leave, while others have a right to only 13 weeks parental leave unpaid. It is wrong that such parents cannot put their names on their children’s birth certificate, they cannot make decisions about medical treatment for their children until they have a formal parental order in place. It is wrong that such a legal step can be blocked completely by the surrogate mother or her husband; and wrong that it may take months, if a magistrates court is busy, to get that order in place. Above all it is wrong that mothers like Jane are denied the same basic rights to the time they need together with their newborn babies that other mothers have.

“Amy simply wanted Jane to have the same joy as a mother as she had with her own son Archie. Together they make a very powerful case for legal change. This is their campaign and I hope this House will back them today.”

What next?
The Bill proceeded unopposed and was formally listed for a second reading, although in practice it is rare for Ten Minute Rule Bills to be given sufficient Parliamentary time to become law. However, a cross party group of MPs will now meet with the Minister for Employment to press for government-led change. We will continue to support this however we can and if you want to get involved or can help with case studies, please do contact us.

Woman’s Hour today
Natalie was also interviewed on this morning’s BBC Radio 4 Woman’s Hour, following a discussion on the lack of maternity leave rules for surrogacy which Natalie contributed to back in 2009, and updating the programme on what was happening today. You can listen to Natalie on today’s Woman’s Hour here.

Article: 17th April 2012 www.nataliegambleassociates.co.uk

Read more about surrogacy law Looking for an egg donor? search hundreds of profiles at www.prideangel.com

Texas sperm donor — Former Arlington police officer Ronnie Coleman is an eight-time Mr. Olympia winner. But he believes it was a moment of weakness when he agreed to donate sperm so a friend could have a baby.

"Wasn't nothing written down," Coleman said. "We'd been friends 14 years at the time. I never thought it would come to what it came to." Coleman said he used a California sperm bank in 2006, and made it clear he wanted only to be a donor — not a parent.

But he said he soon received demands for child support for the two surviving triplets after the sperm recipient gave birth. "I feel betrayed in a way," Coleman said.

Coleman, who has two young children with his girlfriend, said he's paid many thousands of dollars in child support payments to the other woman, along with about $400,000 in legal fees to free himself from those payments.

A California court of appeals recently ruled in his favor. We were unable to reach the woman's attorney. "I think what's happened is, medicine has advanced much faster than the law has advanced," said Arlington attorney Lauren Duffer.

She handles complicated paternity cases. Duffer said the contracts for donors should be extensive, with clear intent at every step in the process. "The main thing is medical professionals and legal professionals communicating," Duffer said.

As for Ronnie Coleman, he said the financial strain has nearly broken him. And he said he would never even consider being a sperm donor in the future.

Article: 14th April 2012 www.kens5.com

Considering donating sperm or using a known donor in the UK? read more about your legal rights.

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

The child support system in the United States is a mess. Too many states follow formulas that don't serve the needs of individual families and leave many non-custodial parents feeling stripped of their rights while many custodial parents feel they are forced to wait and wait through bureaucratic processes before receiving their money. There are some single parents who are happy with the way child support works, but they are hard to come by.

Chukwudera B. Okoli is a man in Massachusetts (I hesitate to even call him a "father") who has every right to hate the system right now. Currently, he's being forced to pay child support to the children born via IVF to Blessing Okoli, his former wife.

The story is so unfair, it will make you want to scream. But the issues it raises are even more troubling. Are sperm donors fathers now?

Even in the case of an anonymous sperm donor, the child support may be in the best interest of the children. After all, children need the support of two parents. But morally it's wrong. Isn't a man a person, too? Don't they have rights? What kind of mother purposely creates and gives birth to a child (or children) she can't afford and then changes her mind about an agreement?

Our legal system shouldn't be supporting such irresponsible behavior.

Biology doesn't make a person a father. That is done through late nights and changing diapers and school plays and cuddles. But the court says otherwise. The court says regardless of whether you and the mother signed an agreement, a person is legally obligated to support their offspring with their money whether they're involved with the children or not.

No one is going to donate sperm anymore if this is the kind of thing that happens. Okoli's case may be unique in that he was once married to the mom, but in the end, he is a donor and just a donor. Just like the anonymous ones in a sperm bank. Here is a man thinking he is doing a good thing and he gets sued for child support. It's so wrong.

The bottom line is that a single woman shouldn't have children she can't afford on her own. Part of good parenting is making good decisions for your family. Why would you have kids you can't afford?

An anonymous sperm donor -- or any sperm donor -- is not a father and no amount of child support can make him one. In the family court, every decision is made in the best interest of a child, but parents are people, too. They have rights. This tramples on men's rights and it makes women look incompetent. If you can't afford a child, for God's sake, don't have one.

Child support may make sense legally, but morally it's an absolute mess.

Article: 8th March 2012 by Sasha Brown-Worsham www.thestir.cafemom.com

VANCOUVER — The long-running battle over sperm donor anonymity is heading for the B.C. Court of Appeal on Tuesday. Lawyers for the B.C. government are expected to seek to overturn a ruling that last year struck down as unconstitutional the anonymous sperm-donor law. The appeal is scheduled to be heard over two days.

Olivia Pratten, who was born in B.C. and now lives in Toronto, has been trying unsuccessfully for 10 years to find out details about her biological father, who was an anonymous sperm donor.

The May ruling by B.C. Supreme Court Justice Elaine Adair suspended her decision for 15 months to give the B.C. legislature time to redraft the Adoption Act to bring it in compliance with the Charter of Rights.

But instead of passing new legislation, the government has opted to appeal the ruling. Pratten believes the government is just stalling for political reasons that are unclear to her.

“In my eyes, it’s a delay tactic,” she said of the government appeal. “They don’t want to deal with it, but that’s been the problem since whenever we’ve done this. It gets bounced around between provincial and federal governments and no one wants to deal with it.”

Pratten added that while it’s been frustrating, scholars and legal experts have told her that the case will likely wind up being appealed to the Supreme Court of Canada in any event.

The judge found that the law was unfair because it allowed adopted children to find out information about their biological parents, but prevented donor offspring such as Pratten from finding out anything about their parents.

“In my view, the evidence in this case provides strong support for the conclusion that the circumstances of adoptees and those of donor offspring with regard to the need to know and have connection with one’s roots, are closely comparable,” said the judge.

Article: 13th February 2012 www.montrealgazette.com

Read more about known sperm donation at www.prideangel.com

The courts are all talking about same sex parenting disputes. The Court of Appeal has this week been hearing from a donor applying for contact with his biological son against a lesbian couple who say they feel “bitterness and betrayal” (the case has not yet been decided but you can read the coverage in the Telegraph here). This follows the decision just a few weeks ago by High Court judge Mr Justice Hedley (in P&L (minors) 2011, available here in full) which dealt with a very long and bitter dispute about the role of gay donor dads to two children (aged 10 and 6) being raised by their lesbian mothers. The courts are feeling their way with what they call new models of alternative parenting, and trying to develop an approach for these types of cases, which are far from traditional family law disputes.

Having advised many same sex parents (both at the planning stages and those who end up in dispute) we see some wonderfully successful co-parenting arrangements. But where they go wrong, they go horribly wrong. What is interesting, though, is that parents always seem to fall into one camp or the other. I can honestly say that none of the clients we have advised at the planning stage has ever come back for legal representation later. Equally, not one of the clients we have represented in disputes took legal advice at the outset.

So here are our tips on how to make your co-parenting or known donation arrangement a successful one, and how to avoid ending up in court:

Talk, talk, talk (and more importantly listen, listen, listen)

Don’t rush into trying to conceive. Get to know each other, have honest conversations about the roles you will have and how much involvement you all want. Be as clear as you can about your expectations and be honest with each other and yourselves. If things don’t feel right, have the courage to walk away. There are always other options. You could find another donor or co-parent, or choose unknown donation (as mums) or surrogacy (as dads) if what you really want is parental autonomy.

Understand what roles you will all have

Justice Hedley was keen to “stress the importance of agreeing the future roles of the parties before the first child is born“. And this fits with our experience. Almost all the cases we have seen which have ended up in dispute are ultimately about status. Is the biological dad a father or a donor? Are you equal co-parents, or primary and secondary parents, or parents with another adult role model? Make sure you talk about how you see yourselves and each other, as well as the day to day practicalities of managing your child’s care.

Understand how the law works

The law on parentage is complicated, and who will be the legal parents (and what goes on the birth certificate) depends on the facts, including how you conceive and the birth mother’s marital status. There may be all sorts of different options, both for choosing who the legal parents are and for giving some parental status to the other co-parents if you want to, and problems can often arise where parents have expectations (for example about what goes on the birth certificate) which can’t be met. Take legal advice, or check out the free information on our website about this.

Put in place a written agreement

Donor agreements may not (strictly) be legally binding, but they are incredibly useful. I have always advised parents that putting something in writing helps with the planning, facilitates honest conversations and sets a framework which everyone will feel morally bound by, giving clarity and transparency and setting a really strong foundation.

However, it now seems they may be more legally binding than we previously thought. Although the issue is still untested (the parents in P&L did not have a written agreement, which I suppose comes back to my point that it is not the parents with properly prepared legal agreements who end up in court) the case suggests that the court will pay attention if there is one. Mr Justice Hedley said, in the strongest indication yet, that “the court will be bound to give careful consideration and weight to any such agreement“.

There is no standard format for a donor or co-parenting agreement, but having something which is accurate and personal to you (and prepared with a solid understanding of how the law applies in your particular circumstances) will be much more helpful than any standard pro forma.

If you need help with planning a co-parenting or known donation arrangement, or if you need representation in a dispute, feel free to contact us.

Article: by Natalie Gamble Associates 10th February 2012

Read more about your legal rights when using a known donor at www.prideangel.com

A gay man who donated his sperm to enable his lesbian ex-wife to become pregnant is demanding overnight and holiday access to their two-year-old son. The woman and her female partner have instructed their lawyers to fight the man's demands on the basis he has 'betrayed' a 'pact' the threesome made before the baby was conceived, in which they allegedly agreed he would have 'limited' parental rights. The parents are not being named in order to protect the little boy's identity, but are reportedly all highly-paid professionals living in central London.

The father is said to have attended the baby's birth and currently has five hours of contact a fortnight with him. He claims he was always more than just a sperm donor, and now wants the right to have a full parenting role in his son's life. The Appeal Court heard that the man had been 'utterly consistent' in his desire to parent the little boy, and gained 'pleasure and joy' from interacting with his son.

The child's mum, however, says they had a 'clearly agreed' pact with the man before the baby was even conceived, which stated she and her female partner would be the 'primary parents' within a 'two-parent, nuclear family'. The court heard that the man was previously in a marriage of convenience with the woman which ended in divorce.

The Appeal Court judges are now being asked to rule whether the toddler would the better off with 'three parents and two homes'. The lawyer for the mum and her partner said the couple had been left with 'bitterness and betrayal' and would have used an anonymous sperm donor if they had known the dad would take this stance.

Charles Howard QC, told the court: "Notwithstanding their sexuality and that they acknowledge to that extent that they are an alternative family, the mother and her partner hold very traditional views of family life and would not have chosen to bring a child into anything other than an intact, two-parent, family.

"The ideal upbringing for a child is a stable home in which the parents love each other and had together chosen to bring a child into the world. This is the upbringing which the mother and her partner always wanted to create for this little boy. They were always of the view that their son's best interests militated against him spending very much time away from them or from his home.

"The intention was always that the father, who was at one time their close friend, would generally see the boy in their company by sharing in activities and family events. The breakdown of the friendship has had the result that the boy is spending far more time away from his primary parents than they had anticipated."

"To this couple, the concept of 'three parents, two homes' repeated so often by the father, is very alien and has never been something they could consider. This is something which they have had to accept but it represents a significant departure from their initial plans for their son's upbringing. They cannot conceive of their child being shuttled, physically but more significantly emotionally, between two homes and it is something that they believe will harm their son and cause significant emotional damage."

The dad's lawyer said his client had no desire to undermine the role of the mum and her partner as the child's primary carers, but wants sufficient contact with the toddler to enable a 'developing relationship' with his only son. What a messy situation!

This article shows the importance of setting out clear intentitions between recipients and donors prior to conception and that legal sperm donor agreements must be put in place to help with any possible future disputes. Read more about sperm donor legal rights.
www.prideangel.com

Article: 7th February 2012 www.parentdish.co.uk