Lesbian non-birth mother not considered legal parent after fertility treatment

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. Article: 12th June 2013 www.nataliegambleassociates.co.uk

Lesbian couple in US granted equal parental rights over child

A Florida court has granted equal parental rights to two lesbian women who created a child using the eggs from one of the women, while the other carried the baby to term. It ruled that egg donors may acquire parental rights to children resulting from their gametes under the Florida and US Constitution.
The couple, who have now separated, were involved in custody proceedings over the child, born in 2004, after the woman who provided the eggs sought legal parental status. The birth mother – who under Florida law was automatically considered to be the child's legal mother – reportedly left for Australia with the child, before returning to the USA. The sperm was provided by an anonymous donor who waived all his rights over the child.

A circuit judge initially made a ruling in favour of the birth mother, but the decision was later overturned by the Florida Fifth District Court of Appeal in December last year. The court said that Florida law, which grants parental status to the woman who carries the child only, is out of date and violates the US Constitution.

According to the Orlando Sentinel newspaper, the court said: 'This is a unique case, and the appellate courts in Florida have never before considered a case quite like it'.

Under UK law, the birth mother – who carries the child - is considered to be the child's legal mother even if she has no genetic connection to the child. The law was recently updated to recognise same-sex couples as legal parents of children. The partner of a lesbian birth mother in a civil partnership can now be considered in law to be the child's second parent, if the child was born after 6 April 2009, and can be named on the child's birth certificate. The situation is, however, more complex where the couple is not in a civil partnership.

Speaking about the Florida case to the Sentinel, Professor Nancy Polikoff, who specialises in family law at the American University Washington College of Law, said: 'Any ruling that supports the right of a same-sex couple... is important for its willingness to recognise that these families exist and a child raised in this environment shouldn't be forced to give up a parent'.

The case has reportedly been passed back to the trial judge to determine details of custody, visitation and child-support.

Article: 9th january 2012 www.bionews.org.uk