'Born With Two Mothers'

Did anyone see this tonight? It was incredible. For those of you that missed it, the programme was a loose dramatisation of this case - http://www.timesonline.co.uk/article/0,,2-351239,00.html. Only the two sets of parents and assorted family members were actors, the rest of the 'cast' were playing themselves, be they lawyers, social workers etc.

I was very interested in how the judge came to his decision. To my mind it seemed to be very much a free 'free-standing' decision as it did not appear to rest upon, or be justified by, any legal principle or authority. Obviously the programme was limited in the extent to which it could show the detailed reasoning behing the decision, however it appeared that the judge just made his decision solely on the facts, and did not feel that there was any question of law to be addressed.

I have no experience of this area of law, however I thought that as the legal position was that the woman who actually gave birth was the mother in the eyes of the law, then the judge would either have to ratify that or use some principle of law to transfer custody of the child. It could simply be a custody order, but the facts of the case did not, as one of the QCs pointed out, raise any issue of child welfare (beyond questions of race and culture) or child protection. I assume therefore that under the relevant legislation the court has, even in a purely technical dispute, complete discretion to make any oder that it sees fit in all the circumstances...?

I subsequently tried to find the transcript of the real-life case on Lexis, however didn't have any luck. I was wondering if anyone would have a reference for the case if it was indeed reported (it surely must have been) or whether you could point me to a journal article dicussing it. I have no family law or medical ethics text to hand.

The real hearing seems to have taken place in 2002 and in the Family Division of the High Court.

Thanks!

A.

Reply 1

lawgrad

jurisprudence

I subsequently tried to find the transcript of the real-life case on Lexis, however didn't have any luck. I was wondering if anyone would have a reference for the case if it was indeed reported (it surely must have been) or whether you could point me to a journal article dicussing it. I have no family law or medical ethics text to hand.

The real hearing seems to have taken place in 2002 and in the Family Division of the High Court.

Thanks!

A.

Yes, it was a very interesting case.

Leeds Teaching Hospitals NHS Trust v Mr and Mrs A and Others
[2003] EWHC 259

Reply 2

viviki

Is that citation right I can't find it on lexis

Reply 3

viviki

I found it stupid lexis

Reply 4

Aj2003

I really wanted to watch this but was too busy with work. Damn.

Reply 5

jurisprudence

lawgrad

Leeds Teaching Hospitals NHS Trust v Mr and Mrs A and Others
[2003] EWHC 259

Thanks!

A.

Reply 6

muncrun

jurisprudence

I was very interested in how the judge came to his decision. To my mind it seemed to be very much a free 'free-standing' decision as it did not appear to rest upon, or be justified by, any legal principle or authority. Obviously the programme was limited in the extent to which it could show the detailed reasoning behing the decision, however it appeared that the judge just made his decision solely on the facts, and did not feel that there was any question of law to be addressed.

This was the first case I ever read - on the first day of my law degree! Apparently in family law, the notion of precedent doesn't have the same influence as in other areas of law, and so each case quite literally is founded on it's own merit, rather than relying heavily on past decisions.

Reply 7

Sarky

I watched it and found it fascinating. I'm planning to write about it for an ethics presentation in my medical ethics thingy (i'm doing medicine).

Reply 8

viviki

muncrun

yep they do look at past cases but they decide each case pretty much case by case and its confusing

Reply 9

MissAmy

I'm not sure I entirely agree with the reasoning of the judges in this case. The issue of who was the mother is plainly set out in statue, but it is the issue of the father that is the tricky one. (I would have thought a more appropriate title was have been "Born with Two Fathers" However, I did not watch the programme but I assume it did not revolve around the legal dispute.) The rub was that the sperm donor father, although consenting to the insemination of sperm into his wife (as per the Human Fertilisation and Embryology Act 1990) the reasoning was that the father only consented to the placing of HIS sperm, and not anyone elses. This has always sat rather uneasily with me, mostly a question of statutory interpretation since s.28(2)(b) only refers to placing of "the" sperm. Not "his" sperm. Given the minimal role of precedent in Family Law and the greater emphasis on decisions according to the circumstances of the case, I feel it would have been more effective to decided the case on the contrary.

Of course, if they hadn't been married then there would have been no problem since providing they recieved treatment as a couple there is no question of consent. Hmm !

Reply 10

jurisprudence

viviki

yep they do look at past cases but they decide each case pretty much case by case and its confusing

Perhaps they look at older cases to resolve questions of interpretation or law, but are able to mould those older decisions onto the facts of new cases? With a family law context, it would make sense to do this, and it is not really ignoring precedent, it is just construing precedents narrowly to the factual circumstances they were decided in.

As previously noted I have no knowledge of family law beyond where it touches upon property law, but am finding this interesting.

Reply 11

viviki

MissAmy

in the drama they changed the case so it was the embryo of a black couple accidentally artificially inseminated into a white woman. But I believe in the actual case it was sperm into the wrong egg??
So the legal mother is whoever gave birth to the child but the biological mother is obviously the person whos egg it is.