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Legal Parenthood and Same-Sex Couples

Posted on 06th February 2023 in Family Law

Posted by

Rachael Jones

Solicitor
Legal Parenthood and Same-Sex Couples

Legal Parenthood

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.

Who can be a legal parent - Key Points:

·        The person who gives birth to a child will automatically gain parental status.

·        Donation of eggs does not automatically give a person parental status.

·        If conceived through sexual intercourse or artificial insemination (not in a UK registered clinic), the biological father will be the legal parent. Except, where birth mother is married or in a civil partnership at the time of artificial insemination (if after 6th April 2009), their partner will automatically be the second legal parent.

·        If conceived through sperm donation at UK registered clinic, the second legal parent will be identified on the paperwork. The second legal parent can be the birth mother’s partner, or the biological father. You and your partner can give written consent for your partner to become the second legal parent, provided certain 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.

·        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.

·        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 possible to change a child’s legal parents through a surrogacy agreement or an Order of the Court.

Parental Responsibility – Key Points:

·        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 who is the legal parent of a child. People who are not legal parents can have PR and vice versa. More than two people can have PR for the same child.

·        The person who gives birth to a child automatically acquires PR.

Acquisition by a father:

·        A person who is married to/in a civil partnership with the person who gave birth at the time of birth will automatically obtain PR.

·        PR can be obtained by being named on the birth certificate, entering into a PR agreement with the mother, or by applying to Court for a 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 do not fall into the above, 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.

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.

Find out more

It is recommended legal advice is sought as early as possible as the law surrounding same-sex parents is complex. If you have any questions in relation to parenthood for same-sex couples, please do not hesitate to contact our Family Team who would be happy to help. 

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