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Legal parenthood and same-sex couples

Posted on 18th July 2022 in Family Law

Posted by

Bea Taylor

Solicitor
Legal parenthood and same-sex couples

Who can be a legal parent?

There can only be two legal parents for a child.  Legal parenthood is a lifelong connection between a parent and their child and it is important for your child to understand who their legal parents are.

In England and Wales, if you are in a same-sex relationship the person who gives birth to the child will automatically gain parental status and parental responsibility.  The law recognises that families are increasingly diverse and, following legislation enacted in 2008, same-sex couples have an equal footing with heterosexual couples.

If a woman has donated her eggs she will not be a legal parent, it is only the birth mother who will automatically gain the status of a legal parent.  You will need to consider how the child is to be conceived to determine the nature of the other parent’s status as follows:

  • Natural conception – where a child is conceived through sexual intercourse or artificial insemination (not through a UK registered clinic) the other legal parent will be the biological father. However, if the birth mother is married or in a civil partnership at the time of artificial insemination (if after 6th April 2009) then their partner will automatically be the second legal parent, whether or not they are the biological parent and whether or not the donor is known or anonymous.
  • Sperm donation at a UK registered clinic – where a child is conceived through sperm donation at a UK registered clinic, the second legal parent will be identified and listed on the paperwork provided by the clinic once the sperm donation has been made. The second parent can either be the birth mother’s partner or the biological father (depending on the circumstances and if he is a known donor).  You and your partner can give written consent for your partner to become the second legal parent, provided consent is given prior to insemination and various conditions are met under the Human Fertilisation and Embryology Act (HFEA) 2008.  If your partner does not wish to be the child’s second parent it is advisable that they sign a form confirming this.

If your same-sex spouse, civil partner or partner acquires the status of a legal parent they acquire all of the same rights and responsibilities of a legal parent, including financial obligations towards the child.

It is important to note that a person’s gender does not affect the status of the individual as the mother or father of a child.  The law protects the legal parenthood of trans parents who have not yet been able to change their legal gender before having children.  If you undergo the transition process and obtain a gender recognition certificate you will retain your original status as either the child’s mother or father.

Is it possible to change the legal parent?

Yes, albeit only in very limited situations.  If a child is adopted the adoptive parents will become the legal parents.  In this situation, the birth/biological parents will no longer have legal parent status or parental responsibility.  It is also possible to change a child’s legal parents through a surrogacy agreement or an Order of the Court.

What is Parental Responsibility?

Parental responsibility (PR) is ‘all the rights, duties, powers, responsibilities and authorities which by law a parent of a child has in relation to the child and the child’s property’.  Having PR does not determine whether a person is a legal parent of the child.  It is possible for a legal parent not to have PR and vice versa.  Those with PR should be involved in important decisions regarding a child’s life. 

More than two people can have parental responsibility for the same child:

  • The birth mother automatically acquires PR.
  • Acquisition by fathers:
    • If they are married or in a civil partnership with the biological mother at the time of the birth, they will automatically obtain PR.
  • If they are not married or in a civil partnership with the biological mother at the time of the birth, they can obtain PR by being named on a child’s birth certificate. Alternatively, they can obtain PR by entering into a PR agreement with the mother or by applying to the Court for a PR Order.  If they are named in a Child Arrangements Order as the person the child shall live with, or spend time with, then the Court will make a separate PR Order.
  • Acquisition by second female parent after 6th April 2009:
    • If a female same sex couple are married or in a civil partnership at the time of treatment and satisfy the conditions of the HFEA 2008, they will automatically obtain PR.
  • If they were not married or in a civil partnership with the biological mother at the time of treatment but satisfy the conditions of the HFEA 2008, they can acquire PR by becoming registered as a parent, entering into a PR agreement with the mother or by applying to the Court for a PR Order. Alternatively, if they are named in a Child Arrangements Order as the person the child shall live with, or spend time with, then the Court will make a separate PR Order.
  • Acquisition by second male parent:
    • If a male same sex couple are married or in a civil partnership and use surrogacy to conceive a child, it is recommended they seek consent from the surrogate before making an application for a Parental Order. If the Court grants the order, this will mean the surrogate loses their PR for the child and instead both male parents will obtain PR.
  • An alternative for male same sex couples who are married or in a civil partnership is to make an application to Court for an Adoption Order which would end the birth parents’ legal connection with the child. There are a number of requirements that need to be satisfied and the child’s welfare will be the Court’s paramount consideration.

It is recommended legal advice is sought as early as possible as the law surrounding same-sex parents is complex. For more information, please contact our Family Law team on 01392 207020.

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