Preconceived ideas

The Court of Appeal is currently being asked to consider whether a father '“ a gay man who donated sperm to his lesbian ex-wife '“ should have increased contact with his biological son, who is now two years old. The mother says she made a pact with the father before the boy was conceived that she and her partner would fill the role of 'primary parents' within a 'two-parent, nuclear family'. She and her partner feel that the father's application represents a significant departure from their plan about their son's upbringing.

This is not the first case where issues arising out of a non-traditional family structure have been brought before the courts. The parental rights of gay and lesbian couples who conceive outside of formal medical structures are complex. While the parents may have a clear view before the birth of the child, once he or she arrives they may feel differently. The plan is often very different to the reality of having a child. People may underestimate the emotional attachment that they will feel once the baby arrives, with agreements not to have contact or be directly involved in the child's life not being honoured.

In 2007, Mr Justice Hedley gave judgment in a case concerning the proper role of the biological father in a same-sex female family intended to be self-sufficient (TJ v CV and S [2007] EWHC 1952 (Fam)). The father sought contact and parental responsibility, and his applications were rigorously opposed by the mother and her civil partner. Mr Justice Hedley recognised that it is no longer always possible for judges to decide cases by reflecting and applying broadly agreed social norms of society given 'the increasingly complex routes by which family groups come into being or realign'. The role of the judge has evolved.

Hedley J recently considered another case regarding a contact dispute between two same sex-couples concerning two girls aged, at the time, six and ten (ML and Anor v RW and Anor [2011] EWHC 2455 (Fam)). The girls were conceived by IVF with the agreement and cooperation of all parties, after the lesbian couples placed an advert seeking a gay man or couple to act as a sperm donor. In considering the facts of the case, Hedley J observed the need for a precise agreement as to the roles that each is to play before any attempt is made to conceive.

He treated the evidence of the parties with the greatest caution as the 'intensity of these disputes exacerbated over the years [had] inevitably distorted everyone's perspective and had lead'¦ to some degree of rewriting history'. Accordingly, he felt forced to adopt an approach looking at the external evidence, those facts not in serious dispute, and what he termed 'the inherent probabilities of the case' to build up a picture of what was going on in the case and what had been intended. The very intensity of such disputes once the child is born is in part a result of the emotions felt on becoming a parent. Following these comments, it is clear that some judges will welcome a preconception agreement.

Negotiating terms

The terms of a preconception agreement would need to set out the intentions of the parents for the unborn child and the roles they will each take. This could govern issues such as who will be responsible for making important decisions relating to matters such as schooling, religion and naming the child; who will make the day-to-day decisions; who the child will live with; and arrangements for contact, both generally and on special occasions like birthdays and Christmas.

But, while preconception agreements have a place and will provide the court with some assistance, there needs to be some caution. The agreements at least set out the intentions, but the parties need to be properly advised that, while not binding, such agreements could be extremely persuasive to a court. The parties may agree to something before conception that they later regret as they had not anticipated the way they would feel towards the child once it is born. Such agreements could be revisited after the birth of the child to reflect any change in the parents' views, before the hostility and need for court proceedings is even contemplated.

The exercise of negotiating the terms of a preconception agreement might prompt the prospective parents to consider matters which might not otherwise come to light until after the child has been conceived. In turn, this might help them to assess each other's suitability as a co-parent. It may even persuade the parents-to-be that this agreement is not one they are able to commit to.

Ultimately, in deciding any application under section 8 of the Children Act 1989 or for parental responsibility, the determinative factor remains the welfare of the child, not any terms that the biological parents agreed before conception. In TJ v CV and S, Hedley J stressed that it is essential to put aside the fears, aspirations and feelings of the adults and try to look at the case through the eyes of the child. Therefore, whatever the parents have agreed before the child was conceived may be disregarded by the court.