Gamble & Ghevaert

Posts Tagged ‘lesbian parenting’

Natalie writes for Infertility Network UK magazine: Sperm donors given rights of contact – surely not?

Friday, October 18th, 2013

Natalie writes a regular article for the magazine published for UK fertility patients by leading charity Infertility Network UK.  Natalie’s article this quarter discusses sperm donation and the legal rights donors have if they want contact with their genetic offspring.  Read: Sperm donors given rights of contact – surely not?

Infertility Network UK is the UK’s leading national infertility charity, dedicated to supporting everyone affected by infertility and leaders of the National Infertility Awareness Campaign for fair and equitable access to NHS funding for fertility treatment.  You can find out more about the wonderful work I N UK does at http://www.infertilitynetworkuk.com/ or come and meet them at the Fertility Show, taking place as part of National Infertility Awareness Week 28 October to 3 November.

If you want to know more about lesbian parenting or sperm donation law, there is more information on our website.

NGA at the Alternative Parenting Show 2013

Monday, September 23rd, 2013

Our team had a great day exhibiting at this year’s Alternative Parenting Show on Saturday.  The popular show – which has been running for 3 years – is held in central London and is often a first port of call for parents looking for information about building families in alternative ways.  We were there representing the leading legal work that Natalie Gamble Associates has done for alternative families over many years, on same sex parenting, international surrogacy and fertility law.  It was great to meet so many parents-to-be with questions about their situations, and to catch up with other leaders in the field, including Stonewall, the London Women’s Clinic, PrideAngel, New Family Social, the Donor Conception Network, and the HFEA.

There was also a lot of interest in our new non profit making sister agency Brilliant Beginnings, with a buzz around the hall and discussion in the seminars about the new option for UK intended parents and the changes Brilliant Beginnings is fighting for.  The seminars (on surrogacy, adoption, donor conception and fertility treatment) were also a great source of information for parents planning families, with various NGA legal cases explained.

There was a really great energy – as always – about alternative families of all shapes and sizes.  Every year the APS makes us reflect on how far we have come since we started working in this field, and how positive the landscape now is for everyone who wants to create a family.  Roll on the APS 2014…

You can see more photos on our Facebook page at www.facebook.com/nataliegambleassociates

There is more information about the law for gay dads, lesbian mums and single mums and single dads on our website.

Natalie speaks at leading conference, with Supreme Court Justice Baroness Hale

Wednesday, July 3rd, 2013

Natalie was delighted to speak alongside Baroness Hale at a conference in London on 20-21 June of leading UK and international experts in donor conception and alternative reproduction.

Baroness Hale of Richmond (first woman Justice of the Supreme Court, and former chair of the committee which drafted the very first HFEA Code of Practice in 1990) gave the conference opening address, speaking about the law for ‘new families’ and how the family courts have sought to uphold the welfare of the child in a range of cases involving donor conception, lesbian parenting and surrogacy.

Natalie, invited to give the response to Lady Hale’s address, shared her practical perspective of the issues affecting non-traditional families on the ground, and spoke about her personal experience.  She talked about the deficiencies of current UK law on surrogacy, and how important the new legal rights are for same sex parents.  She discussed how complex and divisive known donor disputes can be, and how in practice unequal biological or legal parentage between separating parents can raise temperatures significantly.  But she also noted that many parents conceiving in non-traditional ways do so with enormous care and planning, and stressed that the success stories should be remembered as well as the difficult cases which come to court.

The other conference speakers included leading academics from Manchester and Cambridge University, experienced practitioners at fertility clinics, experts in bioethics and international lawyers.  Professor Carol Smart and Dr Petra Nordqvist from the Morgan Centre, who hosted the conference, presented the results of their fascinating research project on donor conception, which has explored the responses of parents and grandparents in different family forms to having a child in their family conceived with the help of a donor.

You can read Natalie’s response to Baroness Hale here, or find out more about our campaigning work.  You can also find out more about the Morgan Centre’s research: Relative strangers – a key new study of information sharing and senses of connectedness in donor conceived families.

Sperm donor or dad? Article in G3 magazine

Tuesday, August 7th, 2012

Sarah has written an article for lesbian magazine G3 about known donor disputes, and the recent Court of Appeal decision to award contact to a biological father who donated his sperm to a lesbian couple.

Although every case in the family court is fact specific (and the court made it clear that the only binding principle it was setting was that the child’s welfare should be paramount), it is a decision which has changed the trend of previous case law, which has always been to protect the integrity of the lesbian family unit against any claims from the donor.  We have yet to see how significant it may be in future known donation disputes.

You can read Sarah’s G3 article in full or find out more and known donor disputes from our website.

 

Gaydar radio on the options for same sex parents

Monday, May 28th, 2012

Sarah Wood-Heath was interviewed on Gaydar Radio on Saturday morning about same sex parenting and the options and pitfalls for gay and lesbian parents starting a family.

Talking to Neil and Debbie on the Saturday morning breakfast show (as Britain’s answer to Ally McBeal!), Sarah explained how surrogacy works for gay fathers, and the differences between a surrogacy arrangement in the UK or abroad.   Careful planning is the best way of avoiding legal problems, especially for gay dads planning international surrogacy, given the immigration issues and the fact that UK law won’t recognise a foreign birth certificate naming you both as the parents.   Sarah was also asked about the options for lesbian couples, discussing the pros and cons of using a known or unknown sperm donor, and the need to set things up in the right way.

Although the law has become much more gay-friendly in the last few years, so much is still so untested, including what happens where relationships break down and who has rights and parental status when gay or lesbian parents break up or get divorced.

The good news is that there are so many options available now for same sex couples and single gay and lesbian parents – adoption and co-parenting are also on the list.  While the law still has a little way to go, it is evolving to try and keep up and it is now much easier for same sex couples or singles to find a way to start a family.  It’s just a question of knowing your options and making an informed decision so you make the right choice for you.  With good advice it needn’t be complicated.

There is more information on our website for gay and lesbian parents at www.nataliegambleassociates.com.  You can also check out the Gaydar Radio website at www.gaydarradio.com.

Birth mother vs non birth mother – children law for lesbian parents who separate

Tuesday, May 8th, 2012

By Sarah Wood-Heath.  This article was first published in Bionews on 8 May 2012 and is reproduced by kind permission of the Progress Educational Trust.  PET is a wonderful charity which does crucial work informing debate on assisted conception and genetics.  You can donate to PET or subscribe to Bionews by clicking here.

Sarah Wood-Heath, a solicitor at Natalie Gamble Associates

Sarah Wood-Heath, solicitor at Natalie Gamble Associates

There have been a number of high profile cases of late involving disputes within alternative family structures. Primarily these concern fathers or known donors seeking more of a relationship with their child than they originally wished for. However, another interesting and sadly increasing area we are witnessing is the breakdown of relationships in two-mother lesbian parent families.

As with any relationship breakdown, issues to be dealt with include division of the finances, any civil partnership dissolution and with whom any children will live (as well as contact with the non-resident parent). But these types of divorce cases have a more complex dynamic, with difficult legal and social questions arising from the mismatched biological (and often legal) status of the two female parents.

To date there has been very little judicial guidance as to how much weight the family court will place on the importance of being a birth mother in divorce proceedings, and whether in such cases the birth history and biological link should be considered more important than the relationship between the non-birth mother and the child.

Of course every case is unique, but the two main cases so far where the court has considered and explored these issues in principle make for very interesting reading.

The first case was that of Re G [2006] UKHL 43 which involved a difficult dispute about where the children conceived by a lesbian couple through artificial insemination should live following their separation. The High Court and Court of Appeal ruled that the non-birth mother should have primary care of the two children (mainly because the birth mother had behaved badly and removed the children to Cornwall deliberately to obstruct her former partner’s relationship with the children).  However, in a landmark judgment the House of Lords ruled that the lower courts had not given sufficient weight to the fact that the birth mother was the biological mother of the children and ordered that the children should continue to live with her. The House of Lords expressly stated that the lower courts had placed too much weight on the behaviour of the birth mother and not enough on the biological basis of her relationship. This was a ‘significant consideration which was of importance’. Being the birth mother is, it seems, significant.

The more recent case of T v B [2010] EWHC 1444 (Fam) involved a lesbian couple who were not civil partners but had lived together for many years and had undergone fertility treatment to conceive a child together. Once the child was born they both undertook the role of parents. Although the law at the time did not recognise the non-birth mother as a legal parent, she sought – and was given by the court – parental responsibility, which meant she had full legal authority to take decisions as a parent and to be involved in her child’s care.  Following separation the birth mother applied to the courts for financial provision from the non-birth mother. The court ruled that as the non-birth mother was not a legal parent she had no financial obligation despite the fact that she had to all intents and purposes been a ‘parent’ to them from the very start. The court was somewhat constrained by the wording of the law (and its frustration was evident) but it was clear in this case that whether you were a birth mother or not was deeply significant.

When the court are considering cases involving disputes about care arrangements for children, the court has a range of factors it has to take into consideration. These include: the child’s age, sex and background; their physical, emotional, educational needs; the effect of any change in circumstances; their ascertainable wishes and feelings; any harm the child has suffered or is at risk of suffering and how capable each parent is in meeting the child’s needs.  The welfare of the child will be the court’s paramount consideration and any decision made by the court will be based on what the court considers to be in the child’s best interests. In practice this gives a lot of flexibility, although it is clear that the court is inclined to place weight on the importance of the biological link with the birth mother. In relation to child maintenance questions, this bias is more institutional, with clear legal rules which make only legal parents (and their spouses) financially responsible.

On 6 April 2009 the law in the UK changed to allow two mothers to be named on the birth certificate, recognising them both as the legal parents and giving them both financial responsibility for their children. It is notable that both of the birth mother vs non-birth mother cases have involved children born before this legal change.  Whether or not the new law will give greater weight to the non-birth mother’s position waits to be seen (although this will certainly be the case in relation to financial questions). Things are likely to be muddied further by the increasing blurring of the lines between birth and biological parenthood for lesbian couples. We are certainly seeing more egg swapping cases, where an egg has been taken from the non birth mother, fertilised and then transferred to the birth mother. Where parents in these situations separate, will the birth mother or the biological mother be the one with the upper hand?

Same-sex divorces are undoubtedly legally complex where children are involved. In a dispute over a child within an alternative family structure, an argument often run is the importance of the biological link, and the genetic identity of the child. With changes to the law and even more complex family structures emerging, it will be interesting to see how the court responds.

Find out more from our website about divorce and relationship breakdown and lesbian parenting.

Guardian weekend magazine ‘Gay parenting: it’s complicated’

Monday, April 23rd, 2012

Emma Brockes has written a fabulous major feature for this weekend’s Guardian Weekend magazine on same sex parenting, in which we are proud to be quoted.  The piece tells the story of three modern same sex parent families:

gay parenting 1Kellen and Patricia, lesbian mums from New York who have a daughter and are now expecting twins, following egg swapping IVF – Patricia is the birth mother but she carried embryos created with Kellen’s eggs.

Will Halm and Marcellin Simard, gay dads to three children age 15, 13 and 10, who pioneered surrogacy as gay dads in California, where they were the first same sex parents to be named on a birth certificate together, and where Will now represents others as a fertility lawyer.

Andrew Solomon and John Habich, gay dads to a truly alternative family structure – a son through surrogacy who they are raising together, and three more children co-parented with two different mothers.

It is a wonderful picture of the realities of modern same sex parenting, with scenarios we are increasingly dealing with for families in the UK too.  All the parents involved talk vividly about the challenges and problems they have faced as gay parents – not the playground prejudice and emotional problems many might expect, but losing legal rights when crossing  borders, and grappling with obstructive passport authorities.  But the biggest problem of all for alternative families remains surrogacy.  As Emma says in her article:

gay parents 2There is, in all this, one glaringly unsubtle problem, and that is surrogacy, which as a percentage affects gay men more than any other group. Commercial surrogacy is illegal in the UK, forcing many childless couples to seek help abroad. When they return, the British government is reluctant to endorse an arrangement that undermines public policy. “English law applies its own rules as to who the parents are, irrespective of what happens abroad,” says Natalie Gamble, the country’s leading fertility lawyer. “So even if you’re named as the parent on a US birth certificate, English law will say that the surrogate is the mother and if she’s married, her husband is the father.”

This can lead to some bizarre situations. In 2008, Gamble’s firm acted for a British couple who had used a surrogacy service in Ukraine. “In Ukraine, the law said they were the parents. But under English law, the Ukrainian surrogate and her husband were the parents. The systems were in direct conflict. The result was that the children had no parents and no nationality. They had no right to stay in Ukraine, and they had no passport to cross any borders. That’s the worst nightmare of international surrogacy.”  Gamble persuaded the Home Office to issue the children with discretionary entry clearance, then applied to the high court for a parental order, naming the British couple as legal parents.

gay parenting 3We have long campaigned for alternative families, both individually in court, and by arguing hard for changes to the law (including supporting the UK’s legal changes allowing gay dads and lesbian mums to be named on birth certificates together).  Why do we do this?  Because we believe that parents who love and cherish their children raise wonderful families, no matter what the structure.

With that in mind we want to salute, above all, what Will Halm says about his teenage daughter: “That a test tube baby, from two gay men, is a well-adjusted, smart, polished girl at 15, who is comfortable talking about her family – she is what I would like the world to see. Not the parents who are creating the child, but the children themselves.”

You can read the article in full at http://www.guardian.co.uk/lifeandstyle/2012/apr/20/gay-parenting-emma-brockes

Known donation on trial

Friday, February 24th, 2012

By Natalie Gamble, Published in BioNews 645

The family court has been making law on known donors, with a number of recent disputes between known sperm donors and lesbian mothers. 

In one recent case (reported in BioNews 644), the Court of Appeal is considering whether a gay sperm donor should have a right to regular contact with his biological son, conceived with his ex-wife who lives with a female partner.  The adults had agreed verbally at the outset that the same sex couple would be the parents and that the man would not be involved in bringing up the child. The boy’s mothers say they feel ‘bitterness and betrayal’ at his change of heart.  The case follows another recent decision by High Court judge Mr Justice Hedley awarding gay dads contact with two donor conceived girls, aged 10 and 6, following a long and bitter legal dispute with the children’s lesbian mothers about their role (1).

What is interesting is the legal framework the court is developing for dealing with these kinds of issues, and how very different they are from traditional mother-father disputes.

How does UK law work?

UK law is, in theory, clear and certain about the parentage of children conceived through assisted reproduction:

The woman who gives birth is the only legal mother, and the egg donor’s claim to motherhood is excluded.

Spouses (and since April 2009 civil partners) who conceive with donated sperm are both legal parents, and the donor is not the legal father.

A sperm donor who donates through a licensed clinic as a donor (and not as a co-parent) is not the legal father, whatever the marital status of the recipient.

But known donation situations challenge the simplicity of these black and white rules. Where a donor is known to the family, he or she may be invited to play some kind of role in the child’s upbringing. This happens frequently where solo or lesbian mothers conceive with a known sperm donor. But the nature of the donor’s (or co-parent’s) role can extend across a very broad spectrum from minimal contact to full co-parenting, with a million different shades of grey in between. There is obvious scope for dispute if the adults involved later disagree about the nature of that role.

The court’s approach

The law in these situations is complicated, but any known donor can, as a minimum, ask to apply for rights of contact with the child. The UK family court has incredibly flexible powers and the child’s welfare, rather than the wishes of the adults, is its paramount consideration.

In deciding such cases, the court will typically ask: What was intended at the outset and what is the current reality of the arrangement? What is the purpose of the proposed contact? Will it undermine the main family unit, and particularly the non-biological parent?

The trend of the case law seems to be heading towards drawing a broad distinction between known donation arrangements where the known donor gets limited ‘identity contact’, and co-parenting arrangements where the father has a more significant ‘secondary parenting’ role. However, every case is different and the court is typically concerned not to undermine the integrity of the primary family unit (usually the lesbian mothers). In practice, donors usually get a lot less than they are asking for and they will be disappointed if they expect to be treated simply as traditional separated fathers.

The significance of donor agreements

A key question is the extent to which the court will pay attention to any written donor agreement. Even if not legally binding, will it be given weight by the court? The recent case of the two donor conceived girls gives the strongest indication yet, Mr Justice Hedley noting that ‘the court will be bound to give careful consideration and weight to any such agreement’.

However, what is perhaps most interesting is that not one of the cases yet heard by the court has involved a written donor agreement. This does not surprise me – in my fertility law practice I see how known donor disputes are almost invariably a product of mismatched expectations between those involved, with latent problems present from the very outset. The process of putting something in writing (however that is done) is the best insurance against a dispute, facilitating thorough and honest discussions about the role and status everyone will have.

I have, on one or two occasions, had clients who decided to abandon plans to co-parent after going through this process, deciding on reflection that they were better suited to a different route (usually sperm bank donation for lesbian mums, or surrogacy for gay dads). These are the cases, I am sure, where legal disputes have been narrowly avoided. 

Lessons learned

It would be a shame for anyone to think, as a result of these cases, that known donation arrangements are a bad idea or that those entering into them are reckless or foolish. I have over the years seen some wonderfully successful co-parenting arrangements, where children are nurtured with absolute transparency about their genetic heritage and a wealth of love and security from committed parents (usually more than two).

But known donation is not the right path for everyone. Where it goes wrong, it goes horribly wrong. I am sure that these disputed cases will not be the last – we are certainly dealing with more disputes of this kind than we were three or four years ago – and I am pleased that the court is developing a specialist jurisprudence which affords these situations the sensitive approach they deserve. In the meantime, anyone entering into a known donation arrangement would be sensible to pay heed to these cautionary tales, and to take on board the need to plan thoroughly, talk honestly and listen carefully, before they get pregnant.

 SOURCES & REFERENCES

British and Irish Legal Information Institute | 20 December 2011
 

How to avoid a known donor dispute

Friday, February 10th, 2012

The courts are all talking about same sex parenting disputes.   The Court of Appeal has this week been hearing from a donor applying for contact with his biological son against a lesbian couple who say they feel “bitterness and betrayal” (the case has not yet been decided but you can read the coverage in the Telegraph here).  This follows the decision just a few weeks ago by High Court judge Mr Justice Hedley (in P&L (minors) 2011, available here in full) which dealt with a very long and bitter dispute about the role of gay donor dads to two children (aged 10 and 6) being raised by their lesbian mothers.  The courts are feeling their way with what they call new models of alternative parenting, and trying to develop an approach for these types of cases, which are far from traditional family law disputes.

Having advised many same sex parents (both at the planning stages and those who end up in dispute) we see some wonderfully successful co-parenting arrangements.  But where they go wrong, they go horribly wrong.  What is interesting, though, is that parents always seem to fall into one camp or the other.  I can honestly say that none of the clients we have advised at the planning stage has ever come back for legal representation later.  Equally, not one of the clients we have represented in disputes took legal advice at the outset.

So here are our tips on how to make your co-parenting or known donation arrangement a successful one, and how to avoid ending up in court:

Talk, talk, talk (and more importantly listen, listen, listen)

Don’t rush into trying to conceive.  Get to know each other, have honest conversations about the roles you will have and how much involvement you all want.  Be as clear as you can about your expectations and be honest with each other and yourselves.  If things don’t feel right, have the courage to walk away.  There are always other options.  You could find another donor or co-parent, or choose unknown donation (as mums) or surrogacy (as dads) if what you really want is parental autonomy.

 

Understand what roles you will all have

Justice Hedley was keen to “stress the importance of agreeing the future roles of the parties before the first child is born“.  And this fits with our experience.  Almost all the cases we have seen which have ended up in dispute are ultimately about status.  Is the biological dad a father or a donor?  Are you equal co-parents, or primary and secondary parents, or parents with another adult role model?  Make sure you talk about how you see yourselves and each other, as well as the day to day practicalities of managing your child’s care.

Understand how the law works

The law on parentage is complicated, and who will be the legal parents (and what goes on the birth certificate) depends on the facts, including how you conceive and the birth mother’s marital status.  There may be all sorts of different options, both for choosing who the legal parents are and for giving some parental status to the other co-parents if you want to, and problems can often arise where parents have expectations (for example about what goes on the birth certificate) which can’t be met.  Take legal advice, or check out the free information on our website about this.

Put in place a written agreement

Donor agreements (or preconception agreements) may not (strictly) be legally binding, but they are incredibly useful.  I have always advised parents that putting something in writing helps with the planning, facilitates honest conversations and sets a framework which everyone will feel morally bound by, giving clarity and transparency and setting a really strong foundation.

However, it now seems they may be more legally binding than we previously thought.  Although the issue is still untested (the parents in P&L did not have a written agreement, which I suppose comes back to my point that it is not the parents with properly prepared legal agreements who end up in court) the case suggests that the court will pay attention if there is one.  Mr Justice Hedley said, in the strongest indication yet, that “the court will be bound to give careful consideration and weight to any such agreement“.

There is no standard format for a donor or co-parenting agreement, but having something which is accurate and personal to you (and prepared with a solid understanding of how the law applies in your particular circumstances) will be much more helpful than any standard pro forma.

If you need help with planning a co-parenting or known donation arrangement, or if you need representation in a dispute, feel free to contact us.

Natalie Gamble at 10 Downing Street

Wednesday, March 31st, 2010

Natalie was delighted to meet the Prime Minister Gordon Brown, at a reception to celebrate the contribution of the LGBT community to Britain. The event was attended by leading gay and lesbian professionals, business leaders and celebrities, and Natalie was invited in recognition of her championing of UK gay and lesbian families, and her work at the forefront of winning new legal rights for same sex parents conceiving together through donor conception and surrogacy.

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