A case concerning twin girls has come before the Court of Appeal that almost defies imagination in its complexity of relationships. If it weren’t a disturbing harbinger of things to come, it could almost be dismissed as a comedy of errors.
The story starts in the 1990s with two lesbians beginning an ‘intimate relationship’. At some point the relationship became platonic but the two women continued to share a house together until 2012. They disagree over the point at which their relationship became platonic.
While the relationship was still ‘intimate’, following unsuccessful attempts by the one of the women (the respondent) to conceive using her own eggs, the other (the appellant) agreed to donate her own eggs so that the respondent could become pregnant. She donated eggs which were fertilised with sperm from an anonymous male donor. A number of embryos were created as a result.
Some of the embryos were implanted in the respondent who carried and gave birth to twins. So the twins have a birth mother (who therefore became the legal mother), a different biological mother (who has no legal rights or responsibilities, despite being their biological mother) and a genetic father who is currently anonymous.
This case gets more complex. Some of the original embryos remained so one was implanted to the appellant (the woman who had donated her eggs to create them) and she then gave birth to her own daughter, D, in November 2012.
So by this point the appellant is both the biological and birth mother, and thus legal mother, of D, with the same anonymous donor for the father as the twins have. She is, of course, also the biological mother of the twins and because the children all have the same father, biologically, they are full siblings. However, she is not the twins’ legal mother. Under section 27 Human Fertilisation and Embryology Act 1990, the other woman, the respondent, is the twins’ mother.
To complicate matters even further, the respondent (the legal mother of the twins) subsequently entered into a civil partnership with C. C was later granted parental responsibility over the twins and is now their non-biological legal mother, along with the respondent. So the twins have a biological father and mother who have no legal rights over them, a non-biological legal mother who gave birth to them and another non-biological legal mother who came into their lives later!
The appellant took the case to Court because she wants parental responsibility for the twins, which she does not otherwise have. The twin girls are now 5 years old. The Court of Appeal ruling can be found here.
My primary purpose for highlighting this case is to raise the following concerns:
First, this will not be unique nor a one off case. Complex cases will become increasingly common as same sex couples require donated sperm and/or eggs to conceive, as well as surrogates for homosexual couples. The latest data from the HFEA shows that the number of same-sex female couples receiving treatment (IVF and DI) has significantly increased, resulting in 426 babies being born in 2011 alone.
Second, case law will inevitably have to pick up the pieces in deciding who is a parent and who should have contact. Who is a gestational parent, a legal parent, a social and/or psychological parent? In the early days of the Children Act 1989 parental responsibility was primarily based on biological parentage but over the years the categories of those who can acquire parental responsibility has broadened, so much so that genetic parentage is secondary, and often irrelevant, to Courts. (Indeed, the County Court ruled that the genetic mother in the case above was not a parent of the children). Lady Justice Black observed that: ‘Families are formed in different ways these days and the law must attempt to keep up and to respond to developments.’
Lastly, one can hardly begin to comprehend what the legacy of this will be for the children involved, once the roles of each of the various four ‘parents’ becomes apparent over time. Little long-term research has been carried out yet, so we can only guess, (or read life stories such as this), but it doesn’t take much common sense to suspect that they have a very tough road ahead of them.