High Court declares lesbian non birth mother ''not a parent' due to errors at fertility clinic

In a recently published case a High Court Judge has declared a lesbian non birth mother as ‘not a parent’ due to errors at a fertility clinic. The case involved a lesbian couple who had been in a relationship for 13 years and had started a family together at a licensed fertility clinic, with the birth mother conceiving in 2009. The couple had  waited for the changes in the law which allow a non birth mother to become a second parent by signing the necessary consent forms, to come into force before conception. However, now the couple have separated a dispute has arisen over whether the non birth mother should have contact with the children (twin boys).

The birth mother raised the question as to whether the non birth mother could be considered a legal parent due to apparent errors made in completing and submitting the consent forms and the procedures followed by the fertility clinic in question. The court was asked to determine on this preliminary issue before hearing the application for contact and has now ruled in favour of the birth mother.

Mr Justice Cobb very carefully considered the provisions under the HFEA 1990 and 2008 and the guidance given to fertility clinics. In the circumstances of the case it transpired that the consent to legal parentage for the non birth mother was not provided prior to conception and therefore she could not be considered a legal parent. In addition it was found that even if the necessary forms had been completed correctly the clinic had erred in not following the correct procedures, including failing to provide adequate counselling.

Although the court has ruled in favour of the birth mother in this instance the non birth mother has been given permission to continue her application for contact with the children.

It is a decision that will no doubt be of interest to both same sex parents and fertility clinics alike. It will serve as an important reminder to fertility clinics to ensure their procedures when treating couples meet the strict statutory requirements. It also highlights the conflict that can arise between couples when a relationship breaks down and the considerable heartache involved.

Richard has written an article on the decision for Bionews which you can read here

Marriage (Same Sex Couples) Bill

Here at NGA we are keeping a close eye on the Marriage (Same Sex Couples) Bill and its progress through Parliament. The Bill has attracted much public interest this year after passing its second reading in the House of Commons on 5 February 2013 (with a majority of 400 to 175) and now having passed the committee stage on 12 March 2013. This blog is the first of a series as we track the passage of the Bill and the impact it may have.

What does the Bill do?

If passed, the Bill will finally give same sex partners in England and Wales the right to marry. It is currently unlawful in the UK for gay and lesbian couples to legally marry although since 2005 same sex couples have been able to enter into a civil partnership, which gives equivalent legal rights without the badge of ‘marriage’. The new legislation will not only enable same sex couples to marry but also, if they choose, to convert their existing civil partnership into a marriage.

At NGA we have long campaigned for equal rights for same sex couples and we welcome the upcoming changes. Whilst the introduction of the Civil Partnership Act in 2004 was hugely significant, it is not right to draw a distinction between marriage for straight couples and civil partnership for same sex couples. ’Separate but equal’ is a discriminatory approach in principle, in just the same way US racial segregation was in the 1950s.

Civil partners vs spouses: will it make a difference?

We help alternative families in a number of ways at NGA and are interested to see how the upcoming changes may affect same sex couples, in particular couples involved in a relationship breakdown.

Following the introduction of the Civil Partnership Act 2004 couples have been able to bring their civil partnership to an end by petitioning to the court for a Civil Partnership dissolution. If the Bill is passed, same sex couples who have married or converted their civil partnership into a marriage will be able to get divorced, like married heterosexual couples. In practical terms this may make little difference as the way the court deals with untangling things is likely to be broadly the same. One quirk of the rules (which will continue) is that is the petitioning party (the partner bringing the divorce proceedings) will not be able to allege adultery unless his or her partner had committed adultery with a member of the opposite sex. However, the other grounds for heterosexual divorce – unreasonable behaviour, 2 years separation (with consent), 5 years separation and desertion – will also be available.

In respect of resolving the financial matters which arise out of relationship breakdown, it is not known yet what, if any, impact the change in the law will have. There is already little difference as currently the factors the court uses to determine financial matters under the Civil Partnership Act are identical to those used for married couples. This approach was tested and confirmed by the Court of Appeal last year in the case Lawrence v Gallagher (2012). The case involved a same sex couple who were asking the court to determine their financial situation. As this one was one of the first reported cases testing the Civil Partnership Act 2004 the court considered whether the approach should be different from that for divorce. The court confirmed the approach of the court would be the same due to the similarities in the wording in the two Acts, although recognised that every case would be fact-specific. It is highly likely therefore that the law will remain the same in this regard for same sex marriages when dealing with financial disputes.

However, even if the law is the same, same sex relationships less frequently involve the traditional constructs of straight marriages and this can have a big impact on how the finances are divided in practice. If there are children involved, there may also be challenging sensitivities as to unequal biological or legal parentage. Even if the ground-rules of the law seem the same, this means that getting advice from specialists can make an enormous difference. For more information on Civil Partnership breakdown, divorce and children matters you can find more here. At NGA we specialise in family disputes and are recognised as leading specialists in family law for same sex couples. For those who want more information about entering into a civil partnership or marriage we can assist with pre and post nuptial agreements.

It remains to be seen what affect the Bill will have from a legal perspective and we will be monitoring it closely but for now we are pleased to see the progress that has been made. It’s a big step in the right direction.