The Court of Appeal has handed down a decision today in a case brought by lesbian parents seeking to marginalise the relationship between their son and his natural father.

The focus of the parents’ argument was that they wanted to bring up the child in a two parent family. In contemplation of that they sought to reach an agreement with a close male friend. They entered into an agreement – pre conception – whereby he would act as a donor but would then have no further role in the child’s life. Whilst understandable from the parents’ point of view it would have been extremely difficult for a court to uphold this agreement if it were not in the best interests of the child.

The question on everyone’s lips now is whether same sex couples should enter into pre conception agreements such as this and if so should or would those agreements be upheld by courts in the future?

The question arises as a result of changing attitudes towards same sex couples and their legal rights. It would be easy to say on the one hand that following on from the recent highly publicised prenuptial agreement case (Radmacher) such agreements should be given considerable weight. After all the decision in Radmacher was based, at least in part, on the courts taking the view that adults should be able to regulate their own affairs provided there is no undue influence.

However we must recall that in the case of pre nuptial agreements these usually deal with finances rather than the level of contact parents should have with their children following on from divorce. Indeed it is difficult to see a court upholding an agreement which, for example, states that if a married couple later separate the father will see his child for two hours each week. Inevitably the court would take into consideration the welfare checklist as set out in the Children Act.

The overriding principle of the Children act is that the court must do what is in the best interests of the child. That test must be undertaken at the time the matter comes before the court. It seems highly unlikely, in my view, that the courts, despite their efforts to ensure they are keeping up with social change, would feel able to uphold an agreement made in relation to a child several years ago.

The other point of difference in relation to pre nuptial agreements is of the course the need for some level of equality of bargaining power. The courts will consider whether each party had independent legal advice before entering into the agreement or at the very least whether they had the opportunity of doing so and whether if they did not they were disadvantaged in their ability to deal with the agreement. Is it possible to measure the levels of bargaining power when one is dealing with such an emotional topic as a parent/child relationship?

Whilst therefore it is easy to say that such pre conception agreements should be upheld is it right that greater weight should be attached to an agreement made pre conception to an agreement made post conception by a heterosexual couple or indeed a lesbian couple? It is difficult to see why different criteria should attach. Does it really make a difference to the child’s best interests whether he or she was born at the time the agreement was entered into? The salient facts are of course that the donor is a natural parent. As a natural parent the child has a right to know him and to maintain a father child relationship in all but the very most extreme cases. Should this really be any different because a donor decided pre conception that he would never have any contact with his child, especially when the donor is a close family friend and is therefore coming into contact with that child on a regular basis.

In summary it is difficult to see how a pre conception agreement such as the one in this case could have been upheld. If such agreements are to be upheld then they must surely only be upheld when the parties have each had independent advice or at the very least having a high level of understanding of what they are entering into. It is this which causes difficulty. If each party has capacity or is commercially aware there is equality of bargaining power when discussing financial issues. I think the difficulty comes in how we assess equality of bargaining power in relation to a donor who has not yet seen or bonded with his unborn child but may later go on to do so.

Whilst it may seem fair at first blush to hold a donor to a pre conception agreement the consequence would inevitably lead to agreements being made by heterosexual couples and couples looking to regulate the position post conception. It is this which renders such agreements difficult. That said this case is perhaps unusual in that the couple in the case decided today sought to reach an agreement with a man with whom they maintained a friendship. It was inevitable he was going to come into contact with this child.

One has to query whether this situation would arise in other than those fewest of cases if the donor never later came into contact with the child. Would he be making an application and more importantly would it be in the child’s best interests for him to have contact – he may by then be in an established environment where knowledge of his natural father may seek to de stabilise the situation. Once can certainly see that in that scenario it would be far easier to uphold the agreement. It has been acted upon to the extent there has been no bonding.

It seems that from a practical point of view if a same sex couple seek to ensure a donor does not later seek contact the donor should never be a close friend, should not come into contact with the child at all and if there is an agreement at least then there is an argument to say that the disruption to the children would be so great that it would not be in his or her best interests.

An agreement in those circumstances would serve to show that intention existed from the beginning and having been acted upon to date it would now be detrimental to the child to resile from it. Having an agreement is not of itself sufficient: it is the choice of donor and the action taken after the birth of the children which are likely to determine what would happen if the donor made a later application for contact.

Amanda Melton is a Partner and Head of the Family Group, at Matthew Arnold & Baldwin LLP.