New Case on Genetic and Gestational Lesbian Mothers in the UK

First off, thanks to Natalie Gamble and Bill Singer for pointing me towards this case.   It’s actually a nice complement to the Jason Patric case, which has been the focus of a lot of recent discussion here.

A lesbian couple in the UK wanted to have children.   One woman provided eggs.  (She’s the genetic mother.)  These were fertilized in vitro and the resulting embryos were transferred to the other woman’s uterus.   (She’s the gestational mother.)  The gestational mother gave birth to twins.

Both women cared for the children with the genetic mother assuming the role of stay-at-home mom.   As some point one of the earlier-created embryos was transferred to the uterus of the genetic mother and a third child was born.   (The third child is a full genetic sibling to the twins.)

And then the women split up.    A dispute arose over arrangements for the twins.   (I gather there wasn’t dispute about the third child, but I’m not entirely sure what the agreed-to arrangements were for her/him.  I think that child was with the woman who was both the gestational and genetic mother for that child.  Perhaps the law was clear here and so there was nothing to dispute?)

Now the UK does things somewhat differently from the US (which is just what you’d expect in family law–no uniformity here) and so the key questions are apparently parental responsibility and residence.   (It looks to me like “parental responsibility” is akin to legal custody–which is to say the right to be a decision maker for the child–while “residence” is akin to physical custody–where the child lives.   I am going to rely on a UK reader to set me right if I go astray here.)

In any event, the women agreed that the twins should live with the gestational mother and have regular contact with the genetic mother.   But the lower court found that only the gestational mother had parental responsibility.   (This result is apparently consistent with what was at the time UK law but perhaps is no longer UK law?  Again, I look to readers for further enlightenment.)

In the recent opinion the appellate court reversed this conclusion and remanded the case for further consideration.  Natalie Gamble’s blog notes:

 insufficient weight was given to the non-birth mother’s connection with the children, including the biological connection the children have both with her and their younger sibling.

I’ll be very interested to see what the lower court now does.   It seems to me there are two different “connections” the genetic mother can raise.  One is the actual social/psychological relationship she has with the twins.  The other is the genetic relationship.   (In this regard, she may be like Jason Patric, who might have both of these with regard to Gus.  (Remember–the facts about his social/psychological relationship haven’t been determined by a court at this time.)    I think the lower court is invited to reconsider the case with both of these relationships in mind.

It will come as little surprise that for me, the social/psychological relationship is the one I’d like to see given greater weight.  And the language reflected above (which might not be the language of the opinion?) doesn’t entirely please me from that perspective.   The existence of the genetic relationship between the siblings, say, matters far less to me than the fact that the social reality.   Of course, the lower court here needn’t sort this out because the genetic mother is also a psychological/social mother.

The suggestion that the genetics matter disturbs me, particularly in a case like this. The two women here employed IVF–which is both intrusive and expensive–to achieve the result (one genetic mother/one gestational mother).   This shouldn’t be necessary to ensure that a child has two legal mothers.  If it is, it simply drives people further into the arms of ART and clearly disadvantages those without the wherewithal to afford it.

One response to “New Case on Genetic and Gestational Lesbian Mothers in the UK

  1. Hi Julie

    Just thought I’d answer your query about the concepts in UK law (and apologies in advance that it’s complicated!).

    We have two separate legal statuses in relation to being a parent in the UK: legal parenthood (which determines status connections, inheritance, financial responsibility and nationality) and parental responsibility (which is the authority you need to make decisions for a child under 18, and the right to be involved in those decisions). You can have PR without being a legal parent.

    The birth mother of a child is always a legal parent and always has parental responsibility. If she conceives a child before 2009 her female partner will not be the other legal parent (unless there has been an adoption process post birth) but the non-birth mother can acquire parental responsibility.

    For unmarried partners the only option is a court order called a ‘residence order’. That’s an order by which the family court says who a child should live with but, since it also automatically gives parental responsibility, it can be used flexibly. There is long track record of the court making ‘shared residence orders’ in order to give parental responsibility to someone who in reality only has contact/access.

    In this case, residence and contact arrangements were agreed (that the twins should live with the birth mother but have alternate weekend and holiday staying contact with the non-birth mother) but what remained in dispute was whether this should be enshrined in a shared residence order (which would also give the non-birth mother parental responsibility so that she would have a right to be involved in key decisions) or a contact order (which would not). The lower court said no to a shared residence order, and the Court of Appeal told them to reconsider.

    I hope that makes sense and answers your query. Also, it was agreed that the third child should live with the non-birth mother. It wasn’t so much that the law was clear, but that there was no dispute: the third child was born as the couple were separating and the other partner was never a parent.

    For the record, the facts are a bit messy too, with a dispute over when the relationship ended, and so whether it was a couple conceiving together or a friend donating her eggs.

    The case itself is here if anyone is interested to read it:

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