Book Reviews - Children and same sex families

A. Hayden QC, HHJ J. Penna, M. Allman, S. Greenan, E. Latvio
ISBN: 978 1 84661 319 7
March 2012
Publisher: Jordan Publishing
Price: £55


Children and same sex families (Family Law, Jordan Publishing 2012) by Anthony Hayden QC, Marisa Allman, Sarah Greenan, Elina Nhinda-Latvia and Judge Jai Penna highlights the many complexities which arise from same sex couples becoming parents.  The very meaning of parenthood is being re-evaluated in courts dealing with same sex couples, especially if such couples have an arrangement with a sperm donor or a surrogate mother. The Human Fertilisation and Embryology Act 2008 (HFEA 2008) does away with the old presumption that a biological parent is, in fact, a legal parent, as the book’s fascinating chapter on parenthood shows in detail.

One example from HFEA 2008 reads: “In the situation where two women attend at a clinic for treatment together to conceive a child to be brought up by them, if one woman provides the egg which is implanted in the other woman, the legal mother will be the carrying mother and the other woman the genetic mother”.

Shortcomings in the law

Among shortcomings in the law highlighted by the chapter are its failure to provide the opportunity to have three legal parents (a useful refinement for, say, two legal parents, in a civil partnership, choosing to conceive through a donor who is known to them).

The chapter on surrogacy comes with a warning that anyone contemplating a surrogacy arrangement should seek specialist advice. Nevertheless, the highly detailed guide it offers takes the reader through all kinds of thorny issues. It’s currently a criminal offence to make or negotiate a commercial surrogacy agreement in the UK. Yet commercial surrogacy arrangements made abroad are not illegal in the UK. This means that it is possible to enter into a commercial surrogacy abroad, then return to the UK, apply for a parental order, and get legal parent status. To obtain this, you would have to be able to show that any commercial exchange was for expenses reasonably incurred. The chapter chronicles the evolution of surrogacy case law, as thinking evolves on where the best interests of the child lie.

Children and same sex couples bills itself as a legal handbook. While certainly thorough enough for that, it may be more: both reader-friendly and intriguing, it’s potentially of as much interest to the intelligent layman as to the professional.

Chris McWatters, Garden Court Chambers

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Chris McWatters

Chris practises family and immigration law at Garden Court Chambers. He is a member of the Counsel editorial board. Before coming to the Bar, Chris worked as a journalist and TV scriptwriter.