When is the biological mother not a legal parent?

The legal mother is always the woman who gives birth to a child even if she has no biological connection to the child due to donation of eggs. The case of  Re G (Shared Residence Order Biological Mother of Donor Egg) [2014] EWCA Civ 336 https://www.bailii.org/ew/cases/EWCA/Civ/2014/336.html is an example of a case where a lesbian couple had conceived embryos through fertility treatment using the appellant's eggs. 

While the couple were still in a relationship two of the embryos were implanted in the respondent who gave birth to twins in 2008 and she was their legal mother despite not being genetically connected to them. The appellant who was the biological mother sought an order to acquire parental responsibility, which she did not otherwise have.  The same remaining embryos were later used for the appellant to give birth to her own daughter, making all three children full siblings

Background

The appellant and respondent had a relationship which ended in 2012. After separation, the appellant continued having contact with the twins. The respondent formed a new relationship with a civil partner who obtained parental responsibility for the twins. The appellant sought a shared residence order to acquire parental responsibility, but Judge Black refused this application after hearing submissions without evidence, granting a sole residence order to the respondent along with contact arrangements.

Judge's Decision

Her Honour Judge Black decided it was appropriate that only the respondent, as the twins' legal mother, should have parental responsibility. She considered that contact arrangements and agreed information-sharing were sufficient recognition of the appellant's role. The judge was influenced by the fact that for the appellant's own daughter, there had been no intention for the respondent to share parental responsibility. She was also concerned about how the appellant might use parental responsibility if granted.

Appeal Arguments

The appellant argued the judge failed to give weight to important factors including her biological motherhood, her care of the twins for 4.5 years, and her ongoing parental role. The respondent contended that she was the twins' gestational, legal and psychological parent, and that making the appellant a legal parent risked undermining her primary care.

Appeal Decision

The Court of Appeal allowed the appeal. Black LJ held that the judge had not taken into account all relevant factors and had attributed disproportionate weight to others. The judge failed to give sufficient weight to the appellant being the biological mother, the mother of the twins' full sibling, and her involvement in their early care. It was also material that without the order, there would be a non-biological parent with parental responsibility (the respondent's civil partner) and a biological parent without it. The Court set aside the sole residence order and remitted the case for rehearing, urging the parties to reach agreement if possible to avoid further litigation.