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Lesbian couple in residence dispute: twins born following egg donation

The Court of Appeal recently considered a residence dispute concerning twin girls aged 5 born as a result of egg donation.

The Court of Appeal recently considered a residence dispute concerning twin girls aged 5 born as a result of egg donation. The dispute was between two women who had previously been in a lesbian relationship (although they were never civil partners). The two women met in 1990 and initially had an “intimate relationship”. One of the women was unable to conceive using her own eggs and therefore her partner agreed to donate her eggs. The donated eggs were fertilised with sperm from an anonymous donor and a number of embryos were created from which one of the women became pregnant and gave birth to the twins in 2008. The twins were not therefore genetically related to their birth mother however in English law the birth mother is recognised as the legal mother pursuant to the Human Fertilisation and Embryology Act 1990. The relationship between the women later became platonic but they continued to live together with the twins until October 2012. The twins call the birth mother “mummy” and their genetic mother a “pet name”. Following the separation of the genetic and birth mothers the children resided with their birth mother but their genetic mother continued to be a part of the arrangements for their care and they stayed overnight with her.

The genetic mother of the twins then used one of the remaining embryos and became pregnant and gave birth to a third child, D in November 2012. The twins and D therefore had the same genetic mother and father but different birth mothers.

The birth mother of the twins subsequently formed a new relationship and entered into a civil partnership with C. C had parental responsibility for the twins as a result of a parental responsibility agreement with the birth mother of the twins.

The genetic mother of the twins initially sought an order for the twins to live with her. She subsequently conceded that she would not pursue a sole residence order and the issue before the Court was whether there should be a contact order or a shared residence order in favour of the genetic mother. The genetic mother argued that without a shared residence order she would be marginalised by the birth mother and a shared residence order would be the only means through which she could acquire parental responsibility for the twins.

The Judge in the County Court initially held that there should be a sole residence order in favour of the birth mother and expressed concerns regarding how the genetic mother would exercise parental responsibility acquired as a result of a shared residence order. The genetic mother appealed and the Court of Appeal upheld the appeal and referred the matter back to the County Court to be reconsidered. The Judges in the Court of Appeal found that the decision of the County Court had ‘wobbly foundations’ and the Judge did not give weight to the biological relationship between the twins and their genetic mother. The Court of Appeal directed that the Court should have recognised the genetic mother’s past and continuing involvement in the twins lives and the fact that she is the mother of their sister D.

Lady Justice Black commented that ‘families are formed in different ways these days and the law must attempt to keep up and to respond to developments.’ She warned that the childhood of the twins should not be allowed to ‘slip away whilst energy is devoted to adult wrangles and to litigation’.

The twins were born prior to a change in the law which would now permit women in similar circumstances to both be recognised as legal parents.

If the birth mother is not in a civil partnership and the child was conceived on or after 6 April 2009 at a licensed clinic in the UK the female partner of the birth mother will automatically have legal parental status provided the second female parent signs the appropriate consent forms prior to treatment.

If the birth mother is in a civil partnership and her civil partner consented to her insemination the birth mother’s civil partner will be legally treated as the second female parent if the child is conceived on or after 6 April 2009.

This case demonstrates the potential for conflict to arise regarding the intentions of donors, their status and role in the child’s upbringing and the level of contact between the child and their biological parents. To avoid the risk of later dispute a co-parenting agreement can be a very useful tool to record the intentions of all parties from the outset and regulate issues such as contact and the legal status of all parties. Not only should the documenting of these issues serve to avoid any misunderstandings, the document itself (although not binding) can be relied upon in Court as evidence of the parties’ intentions in the event of a dispute.