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Law must keep pace with ‘new families’, says Black LJ

Court of Appeal hears residence appeal by egg donor to former partner in same sex relationship

In Re G (Children) [2014] EWCA Civ 336, Black LJ has urged two women who had been in a relationship to settle a residence dispute concerning twins of whom the appellant is the genetic mother and the respondent the gestational mother.

The appeal concerns twin girls who are now 5 years old. At first instance the judge had refused to grant a shared residence order in relation to them. The appellant had sought such an order because it would bring with it parental responsibility for the twins which she does not otherwise have.

The appellant and the respondent, who is the twins' mother, met in the 1990s. Initially, they had an intimate relationship. At some point, the relationship became platonic but they continued to share a house until October 2012. The respondent says that before the twins were born, they had ceased to be in a relationship and were simply living together as close friends; the appellant considers that the relationship continued until the autumn of 2012.

Following unsuccessful attempts by the respondent to conceive using her own eggs, the appellant agreed to donate eggs so that the respondent could become pregnant. She donated eggs which were fertilised with sperm from an anonymous donor. The embryos were implanted in the respondent who carried and gave birth to the twins.

Some embryos remained and one was used to enable the appellant to carry and give birth to her daughter, D, in November 2012. 

The appellant is therefore genetically the mother of D and the twins and the children all have the same father; biologically, they are full siblings. The appellant is also, in law, D's mother. However, she is not the twins' mother. By virtue of section 27(1) Human Fertilisation and Embryology Act 1990, the respondent is the twins' mother.

The respondent subsequently entered into a civil partnership with C.
In reaching her decision to allow the appeal and to remit the matter for re hearing, Lady Justice Black observed the need for the law to keep up with the different ways in which families were formed and that it may have been of help to the trial judge if the parties had asked her to consider the body of cases dealing with the concept of parental responsibility in "new situations".

Black LJ formed the view that, in concentrating on the importance of the appellant to the children in terms of contact but not as their genetic parent (or as the mother of D - both of which roles would become apparent to the twins as they grew up) the trial judge had failed to give weight to the appellant being the biological mother.

Further complexity arose from C (a non biological parent) having parental responsibility whilst the appellant did not.

Black LJ concluded that the trial judge had not taken into account all the relevant factors and had attached "disproportionate" weight to some that she had considered. Given the need for there to be factual findings on which to base a decision, it would not be appropriate (as the appellant had requested) for the appellate court to determine the matter. The case should be remitted for a fresh hearing.

Jane Campbell of 6 Pump Court Chambers (instructed by Evans Main) acted for the appellant. Rebecca Foulkes of 4 Paper Buildings (instructed by Family Law in Partnership) acted for the respondent.

The judgment and summary by Katy Rensten of Coram Chambers, from which this item is derived, are here.

27/3/14