The Court of Appeal in London handed down a ruling last week emphasising the importance of family law keeping up to speed with contemporary family life. Lady Jusice Black observed that “Families are formed in different ways these days and the law must attempt to keep up and to respond to developments”.
The case concerned a same sex female couple. The appellant donated eggs to the respondent (with whom she was in a relationship ). An anonymous sperm donor was used to create embryos and the respondent carried embryos and gave birth to twins. Using the same embryos the appellant herself carried an embryo and subsequently gave birth to a child: thus all 3 children were full biological siblings. It also meant that the appellant was both the genetic and gestational mother for youngest child, but was only the genetic mother to the twins.
The couple separated and litigation began in respect of where the children should reside. Despite this however, at an interim hearing the parties were able to reach an agreement in respect of contact. Nevertheless, the trial judge, Her Honour Judge Black sitting at Portsmouth County Court, was invited to determine whether there should be a shared residence order which would afford the appellant with parental responsibility for the twins(under English law, like many states in the US, the woman who gives birth to the child is legally the mother, regardless of genetics; the appellant was therefore only the legal mother for the youngest child whom she was the genetic and gestational mother.)
The trial judge refused the appellants application for a shared residence order, ruling that the gestational mother should have sole residence; and that the genetic mother was ‘not a parent of the children and that her status should not be elevated in that way’.
In the Court of Appeal, Lady Justice Black giving lead judgment, ruled that the matter should be remitted to the county court judge as the trial judge had failed to give sufficient weight to the importance of the genetic mother in respect of the twnis.