Lesbian Mothers V. Gay Fathers in the UK: The Messiness of Life and Law

This is a bit of a digression, but I’m trying to stay up to speed.   Here are a couple of takes on a recent court opinion issued in England.   In 1999 a gay man placed an ad in a gay paper that read: 

 Gay guy wants to be a Dad. White, handsome, solvent 30s, professional, in happy relationship, non-scene, has everything but kids.  Looking for a similar female couple who want to have kids. I require little involvement, I have a lot to offer.’

A lesbian couple that wanted to have children answered the ad.   The man provided his sperm for insemination and two children were born, one in 2000 one in 2003.   The kids lived with the two women (the woman who gave birth–legally the mother of the child–and her partner), but also maintained contact with the man who’d placed the ad and his partner.  

Of course, if that’s all there were to tell, there’d be little enough for me to write about.  But as often happens in cases that end up in court, things did not go smoothly.   Over time the relationship between the men and the women deteriorated.  Earlier this year the man (who is recognized under English law as the children’s father) went to court seeking more time with the children.  After a hearing a judge ordered that the children spend 152 days a year with him and the remainder (213 days?) with the women.   The court also awarded the mother’s partner parental responsibility for the children.   (I won’t try to explain what “parental responsibility” is–the UK system of law is different enough so that I have no confidence that I’d get it right.  But I believe it does provide some legal recognition for the relationship between this woman and the children.)  

The mother appealed and the news accounts I linked to recount the outcome of her appeal.  It was unsuccessful.  The court of appeal affirmed the lower court’s decision and noted that the judge below had directed the adults to put aside their differences for the sake of the children.   (One can only hope.) 

I don’t have much of an opinion here about whether the outcome of the case is right or wrong–there aren’t really enough facts for me to tell what I think and I’m no authority on English law.   But from what is here, I can say that this is the sort of scenario that makes many lawyers I want to know weep. 

It’s not so much that what the people involved here wanted to do was outlandish or wrong.  I’m willing to say that everyone has, and is entitled to, their own idea of how their family should be constructed.    The problem is that people go about constructing their families without attending to the governing law.   

Perhaps the women here believed that their donor would only have limited rights because this was the agreement he had made.   I’m sorry to say that it isn’t uncommon for people to think that agreements made when planning families are enforceable.  After all, we live in a world where contracts are a common-place and generally do offer a means of agreeing to future behavior. 

But that’s rarely the case in family law.     I’ve said many time that family law varies a great deal place to place and I’ll stand by that.   So the man wouldn’t be a father in Washington state (where I live) because the children were not conceived via intercourse.  By contrast, I think he would be a father in Massachusetts, because he is genetically related to the children.   

For the moment, I’m not interested in whether a particular legal rule is good or not good.    Whatever the law, ignorance of the law is, in the realm of family law, perilous.   Far too frequently people act without realizing that the law will assign a meaning to their actions that isn’t the meaning they expect or want.    They often end up in the lawyer’s office at the end when it would be ever so much better for all concerned if they’d gone there in the beginning.


2 responses to “Lesbian Mothers V. Gay Fathers in the UK: The Messiness of Life and Law

  1. why don’t they teach a mandatory law course in high school along with biology history and gym?

    • Good question. Some high schools offer a course in Street Law, but it’s never mandatory. Even when offered, it tends to be about things like what your rights are vis-a-vis the police. Maybe that’s more urgent for that age group.

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