High Court declares lesbian non birth mother ‘not a parent’ due to errors at fertility clinic

Richard has written an article for Bionews about the High Court’s recent decision that a lesbian non birth mother is ‘not a parent’ due to errors at a fertility clinic. The case involved a lesbian couple who had been in a relationship for 13 years and had started a family together at a licensed fertility clinic, with the birth mother conceiving in 2009. The couple had waited for the changes in the law which allow a non-birth mother to become a second parent by signing the necessary consent forms, to come into force before conception. However, now the couple have separated a dispute has arisen over whether the non-birth mother should have contact with the children (twin boys).

The birth mother raised the question as to whether the non-birth mother could be considered a legal parent due to apparent errors made in completing and submitting the consent forms and the procedures followed by the fertility clinic in question. The court was asked to determine on this preliminary issue before hearing the application for contact and has now ruled in favour of the birth mother.

Mr Justice Cobb very carefully considered the provisions under the HFEA 1990 and 2008 and the guidance given to fertility clinics. In the circumstances of the case it transpired that the consent to legal parentage for the non birth mother was not provided prior to conception and therefore she could not be considered a legal parent. In addition it was found that even if the necessary forms had been completed correctly the clinic had erred in not following the correct procedures, including failing to provide adequate counselling.

Although the court has ruled in favour of the birth mother in this instance the non birth mother has been given permission to continue her application for contact with the children.

It is a decision that will no doubt be of interest to both same sex parents and fertility clinics alike. It will serve as an important reminder to fertility clinics to ensure their procedures when treating couples meet the strict statutory requirements. It also highlights the conflict that can arise between couples when a relationship breaks down and the considerable heartache involved.