When is the right time to question a medical decision?
The High Court of the Family Division has ruled that known sperm donors have the right to apply for contact with their children, even if they have no legal relationship with the child under the relevant legislation.
Since 2009 lesbian couples have enjoyed the right to be legally recognised as the parents of a child they have conceived together, awarding similar rights to the non-birth mother as exist for a father in a heterosexual couple.
This recent case, Re G; Re Z  EWHC 134 (Fam), involved two lesbian couples, and one gay couple, all of whom were friends. The two men had both donated sperm to the two female couples. One man was the biological father to two children, and the other was the biological father to one child. The couples had discussed informally how the arrangement would work, but nothing was put in writing. The two men wanted more contact with the children than their respective mothers were happy to agree to and they therefore applied to court for leave to apply for contact and residence orders in respect of the children.
Mr Justice Baker held that, although the existing family unit should be respected, the biological fathers were able to apply for contact orders in respect of the children, but not residence orders. In making decisions in these cases in the future, the court must consider various factors including the nature of the application, the applicant’s existing connection to the child, and the potential for disruption to the child. The facts are similar to the case of A v B & C , a case in which Kingsley Napley acted for the biological father, and which we wrote about in a previous blog New family structures - rose tinted spectacles? The case of A v B & C confirmed a strong willingness by the courts to recognise the rise of the ‘three parent family’, and this recent case strengthens that by recognising the importance of the role of a child’s biological father. Changing family units bring fresh problems and these need to be reflected in family law developments.
Both cases serve as a warning to not only gay couples, but all couples considering using a sperm donor. The birth of a child can stir unexpected feelings, and an amicable agreement made before the birth will not always withstand the pressures put upon it. Couples using a sperm donor are advised to seek legal advice and to enter into a donor agreement.
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