The Court of Appeal in the UK is hearing a case in which a gay man is fighting for greater parental access to his two-year old son he fathered with his lesbian ex-wife.
The mother says she made a pact with the father during a restaurant meeting before the boy was conceived. In the deal she and her partner would fill the role of primary parents and he would not seek to exercise his parental rights.
The court heard that the father and biological mother used to be in a marriage of convenience and are now divorced. The man currently has five hours visiting contact with his son every two weeks. In order for him to have his son stay overnight, and to able to take him on a holiday, the father wants this visiting contact to be gradually extended.
The mother and her partner say they feel 'bitter and betrayed' after the father made his demands. Mr Charles Howard, QC, representing the couple, said they acknowledge that they are an alternative family to an extent but still 'hold very traditional views of family life and would not have chosen to bring a child into anything other than an intact, two-parent, family'.
Howard added that his clients believe it is in their son's best interest to have one home, rather than two.
Mr Alex Verdan, QC, acting for the father, said that the man had 'described vividly to the court the pleasure and joy that he feels in interacting with his son when they see each other'. He added: 'The father wants to play a full part in his development. He has a strong desire to develop a father-son relationship with the boy'.
Under UK law, donors who donate their sperm through a licensed fertility clinic are not considered as legal parents of the children they help conceive. A donor who donates sperm outside the context of a licensed clinic (for example, to a friend or a donor found through a website online) does not acquire this automatic protection and may be treated as the legal father of the child.
In a same-sex relationship the woman who gives birth to the child will have legal parenthood status. Her partner's status will depend on a number of factors such as whether they are in a civil partnership and whether they conceive through a licensed clinic.
There are similarities to a custody case from 2010 (reported in BioNews 584), where a gay man was awarded joint residency for two children conceived through IVF. As in this case, the lesbian couple wanted to fill the role of primary parents to their children. However, the father had had parental responsibility from the outset for both children, which gave him legal ground to seek further access. The lesbian couple appealed this decision.
The three judges have reserved their decision until an unspecified later date.