Court of Appeal rules for non-birth mother in lesbian parenting case

May 23, 2014

In an important decision on same sex parenting, the Court of Appeal has ruled in favour of a non-birth lesbian mother seeking parental responsibility (the legal authority to be involved in decision-making), despite her lack of legal parenthood.

The non-birth mother had provided her eggs to her former partner, who conceived (with donated sperm) and gave birth to twin girls in 2008. The means of conception split biological and gestational parenthood: one partner was the birth mother, the other the genetic mother. However, since the conception took place before 2009, only the birth mother was a legal parent; the genetic mother had no parental rights in law.

The non-birth mother looked after the children at home for more than four years while the birth mother returned to work. The non-birth mother also carried a third child using the remaining frozen embryos, a full genetic sibling to the older children.

After the couple separated, a dispute arose about the arrangements for the twins, now age 5. It was agreed that the children should live with the birth mother and have regular contact with the non-birth mother. The disagreement was over whether the non-birth mother should also share parental responsibility. The lower courts initially denied the non-birth mother’s application for a shared residence order (which would give her parental responsibility), and she appealed.

The Court of Appeal has now found for the non-birth mother and overturned the lower court’s decision. The court has said that 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. The court has been ordered to reconsider its decision with this guidance in mind.

This case is important because it shows that, even where the law excludes someone’s legal parenthood, the family court can still give them rights and status if they have a biological connection or a parental relationship with a child. For lesbian couples, the law has changed significantly over the past ten years which means that complex legal issues around parenthood can arise for those with children. While cases like this muddy the waters of what may seem clear legal boundaries, they also create flexibility enabling those who have acted as parents to be given the rights of parents.

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