Courts uphold donor conceived child's existing relationships

Family lawyer Jessie Smith comments on the recent landmark Court of Appeal case Re G – where the biological grandparents of a child born from donor sperm have been granted contact with the child – a hot topic of discussion among the legal and mainstream press.

03 Apr 2018
"Three colleagues meeting with one taking writing.

The case concerns 'Aidan', the younger child of 'Jane' and 'Carol', who was conceived with the sperm of their friend 'Brian'. Jane and Carol were civil partners at the time of Aidan's conception and so Brian is not Aidan's legal parent. The parties agreed that Brian would not be involved in bringing up Aidan; however, Brian built a relationship with the child, having regular contact with him (by agreement with Jane and Carol) at which Brian's parents were sometimes present. This continued for the first three years of Aidan's life until Jane and Carol separated.

It appears that while Jane and Carol were struggling through the typically difficult first few years of co-parenting, Aidan's contact with Brian became difficult for them to manage. Two years after their separation, Carol and Jane started to impose boundaries on Brian's visits and eventually his contact with Aidan ceased altogether. There was a period of 18 months of no contact between Aidan and Brian, following which Brian made an application for permission to apply for a child arrangements order. Permission was granted and Brian's application was successful, with the court eventually ordering for Brian to have contact with Aidan seven times a year. So far, so straightforward.

The reason this case ended up in the Court of Appeal is that while giving judgment in relation to Brian's application, the judge ordered that Brian's parents be permitted to attend two of Brian's seven annual visits with Aidan, based on the recommendation of the court-appointed Guardian. Neither Brian nor his parents had made an application for such an order and it is the first reported case where the court has ordered a child to have contact with the parents of the sperm donor. Jane and Carol appealed this part of the judgment.

Factually, this case is not dissimilar to the landmark case of Re G; Re Z which was both the first reported case relating to the Human Fertilisation and Embryology Act 2008 and the first where sperm donors were granted child arrangements orders giving them contact with the children their gametes had created (see BioNews 691). It was clear that much weight was placed on the factual background and that the primary reason for the orders being granted in that case was that the legal parents of the children had exercised their parental responsibility by choosing to bring the sperm donors into the children's lives. They had established a status quo of their children having a relationship with their sperm donors, highlighting the importance that the court places on maintaining the status quo in a child's life. This most recent case applies the principles established in Re G; Re Z, extending them to the parents of the sperm donor as well.

Upon a review of the facts of the case, the Court of Appeal found that the trial judge had made the right decision, as Aidan already had a relationship with Brian's parents and so it would not have been in his interests for that relationship to cease. The judgment also highlights the increasing preference for children of donated gametes to be given the opportunity to understand their lineage, an approach supported by many advisory bodies. The Court of Appeal was clear, however, that the context in which Aidan would spend time with Brian's parents would be as 'parents of his sperm donor' and not as his grandparents.

Perhaps the most interesting issue in this case is the fact that the court made the order without an application having been made for it, and without Brian's parents even having sought permission to make such an application (grandparents have similar rights to sperm donors in that they do not have an automatic right to apply for a child arrangements order and need to seek the permission of the court in order to do so). It highlights the far-reaching power bestowed by the Children Act 1989 upon the court for it to make any order that it considers to be in the best interests of the subject child, even where there has been no application.

While generally considered to be a landmark case, it is important to remember the weight placed on the facts here. This case is unlikely to set the kind of precedent that will see far-reaching applications, but it will be an important guide when it comes to situations where the sperm donor has a relationship with the child and the child's legal parents and where the child has developed a relationship with the sperm donor's wider family.

This article originally appeared in BioNews.


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