Same-sex marriage law is "unfinished business"

Friday 24 July 2020

Jersey’s same-sex marriage legislation is incomplete because couples still can’t be equal parents, according to the island’s law-making watchdog.

In its recently published annual report, the Law Commission calls on the government to end discrimination over who can officially have parental responsibility for a child.

The independent group of lawyers – who make recommendations to simplify and modernise Jersey law, and find anomalies and obsolete legislation – have identified unfairness when it comes to who is registered as a parent on a birth certificate.

They also argue that the law needs to be updated to take account of scientific advances in assisted reproduction.

Pictured: Same-sex parents are not treated equally under the law, the Law Commission says.

Commission member Advocate Barbara Corbett told Express: “The fact we have a same-sex marriage law is great but same-sex parents are not treated equally.

“If two women in a long-term relationship want a child, one will usually be fertilised using sperm from a donor clinic. As the birth mother, she automatically gets parental responsibility, but the other mother does not. If she was a man married to the woman, there would be a presumption of paternity but that doesn’t exist for same-sex couples.

“This was known by politicians when they passed same-sex marriage in 2018, and the report accompanying the legislation said that further changes were needed. But nothing has been done.”

Pictured: Advocate Barbara Corbett is a member of the Jersey Law Commission.

Advocate Corbett added that a “quick fix” would be amending the island's registration law to allow non-biological parents to have full parental responsibility.

“There are existing ways to gain this status, by applying for a joint residence order or by adoption, but the fact is the process is not the same as for mixed-sex couples: it is discriminatory.” 

With surrogacy, Jersey law says that a child’s parent is the birth mother, whether the egg was hers or not. The Law Commission believes this is an outdated assumption.

“I know a same-sex couple where Mother A had her eggs implanted in Mother B," said Advocate Corbett. "One is the biological parent and one is the gestation parent but the law in Jersey doesn’t allow for that. These days, most surrogates are gestational, so it is perhaps a mixed-sex couple who can’t conceive, in which case, the egg and sperm could be theirs, planted into the surrogate.

“Or it could be a donated egg, with the father’s sperm, or both a donated egg and donated sperm. In each case, the baby is not the surrogate’s, but in Jersey, legally it is.

“There was no point bringing in same-sex marriage if the States weren’t going to do the job properly. And they did say they were going to do it; they just didn’t, so it is unfinished business. It could be an all-singing, all-dancing change, but it doesn’t have to be. 

“Of course, there is a legislative backlog, and covid hasn’t helped, but there could a quick fix in changing the registration law.”