THE BLOG
01/02/2018 11:51 GMT | Updated 01/02/2018 11:51 GMT

"Won't Somebody Think Of The Children?"

How family law fails LGBT families, and how governments aren’t doing enough

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A current family law case in the US has caught the media’s attention. It’s one which is difficult, emotional and demands a solution. A gay married couple is suing the US government after the birth of their twins. One twin was conceived with the sperm of one father (a US citizen) and the other was conceived with the sperm of the other father (an Israeli citizen). The birth of the twins took place in Canada (where the fathers were married), and both fathers were listed on each both certificate.

Seemingly simple.

The problem started when the family moved back to the US. The parents and the children were required to take a DNA test to prove biological links to the parents. However, because only one child was linked to the US-citizen father, only that child was given a US passport.

This reflects a quirk of a US law that was designed to cover children born out of wedlock, and should not apply to same-sex relationships. The LGBT support group, Immigration Equality, has taken the fathers’ case. Immigration Equality’s director has pointed out that if a straight, married couple have a birth certificate for a child where both the parents are listed, DNA is never checked.

The situation is the same in the UK, where an outdated piece of legislation makes the lives of same-sex parents that much harder. In the case of the UK, the problem arises between surrogacy and the application of the Human Embryology Act 1990. This Act was designed in part to stop sperm donors claiming parental rights, before the concept of gay surrogacy was even considered. As a result, gay parents trying to bring a surrogate child back into the UK from the US, for example, discover that they have no parental rights, even though the surrogate has transferred parental rights to them under US law. The result? The parents need to bring a long and expensive court case so that a High Court judge can issue a ‘parental order’, ruling under the Children Act 2004 that the best interests of the child mean that the Human Embryology Act should be ignored to prevent the child being, technically, an orphan. There is no guarantee of a successful outcome in these cases, although with the right preparation, the case should go through. Nevertheless, it is additional stress for the parents for about six months after birth. Having no parental rights can cause additional problems for medical treatment, travel in that period and registration with the authorities.

Even after a ‘parental order’ is obtained, further complications can arise. I know of an Anglo-Irish gay couple (who prefer to remain anonymous at this stage) - who have had a child through a UK surrogacy a few years ago. They have applied for an Irish passport for the child as one of the fathers is Irish, but the Irish passport agency is refusing the request. The agency has stated that it does not recognise UK parental orders as they refer to ‘parent and parent’ not ‘mother and father’. This is a strange line of reasoning, but the only way to challenge this is for the parents to hire an expensive human rights lawyer.

As one of the couple says: "With surrogacy becoming ever more common, for both straight and gay couples, it seems inevitable that there will have to be more international alignment of attitudes to surrogacy. It is clearly unworkable that one EU country can recognise a child's two dads, but then another EU country will not recognise that parenthood."

What do these examples show? The outcomes here are generally unintended consequences, although the Irish case does smack of simple discrimination. We have legislation in place that was enacted before same-sex parenting was even thought about, resulting in quirks that are sometimes surmountable, and sometimes not. Sadly, the governments in question seem reluctant to make the changes that would simply allow same-sex parents to have genuine equality - the UK has kicked the issue into the long grass by referring it to the Law Commission. What is needed is for governments to look at this topic specifically and talk to same-sex parents about the issues they face. In the meantime, we should continue to highlight these inequities, challenge them, and try to make the lives of same-sex parents no more or less stressful than their straight counterparts.