Your sexuality should not impact your rights as a parent.  Having said that, LGBTQ+ parents will need to be able to navigate the rules around who is the “legal parent” and who has parental responsibility for a child.

Being an LGBTQ+ parent brings with it all the issues and responsibilities of any parent, but it also brings a number of unique considerations. Getting the right legal advice can ensure that your interests and those of your children are protected at all times.

LGBTQ+ parental responsibilities and rights

What does being a parent actually mean in the eyes of the law?

Legally it means:

• A child’s parent has a duty to financially support the child
• A child has a right to inherit part of their parent’s estate when their parent dies.

It does not carry any other responsibilities or rights; these come with having parental responsibility.

Under UK law, a child can only have two legal parents, although a number of people can hold parental responsibility.

What is parental responsibility?

Parental responsibility is described as “all the rights, duties, powers, responsibilities and authority which, by law, a parent has in relation to a child and his [or her] property”. Having parental responsibility means you can make decisions about your child, such as where they go to school or what medical treatment they undergo.

Who has parental responsibility?

The law defines who a child’s parents are and who has parental responsibility for a child.

The birth mother of a child has automatic parental responsibility from birth. This is the case even if the egg was donated by another woman.

A birth mother’s partner will have parental responsibility if they were married or in a civil partnership at the time of the birth or if they are named on the birth certificate.

A father married to the birth mother will automatically have parental responsibility for the child.

A father not married to the birth mother will have parental responsibility if named on the child’s birth certificate.

Legal parenthood – who has it?

The birth mother is the child’s legal mother. 

If conception takes place naturally, both biological parents will be the legal parents of the child.

Children born with the assistance of sperm donation or fertility treatment

Whether the non-birth mother will obtain legal parenthood is dependent upon whether the couple are married or in a civil partnership and whether the insemination takes place in a UK licensed fertility clinic or not:

1. For same sex female couples in a civil partnership or marriage – if a baby is conceived in a UK licensed fertility clinic or at home, then the non-birth mother will automatically be the second legal parent and will be named as such on the birth certificate. The donor will have no legal parenthood status.

2. For same sex female couples not in a civil partnership or marriage – if a baby is conceived in a UK licensed fertility clinic the couple will need to complete a form at the clinic for the non-birth mother to be the legal parent and to appear on the birth certificate. The donor will have no legal parenthood status. If the baby is conceived outside of a UK licence fertility clinic, the non-birth mother must apply to adopt the child to gain legal rights.

For children conceived by donor insemination or fertility treatment before 6 April 2009, different rules apply. Please get in touch if you need to know more about this.

Children born without official sperm donation

Co-parenting involves two or more people who are not in a relationship who are to conceive and raise a child together. As explained, in the UK a child can only legally have two parents, so where there are more than two people involved in the arrangement it will usually be the biological parents who are legally the parents. However, more than two people can have parental responsibility.

If a man in a same-sex relationship donates his sperm to a single woman with the intention of co-parenting any resulting child, it is likely that he will be treated as the child’s legal father. If named on the birth certificate, he will also have parental responsibility for the child.

The position where a man/same-sex couple donates sperm to a female couple is more complex. As set out above, female couples who are in a civil partnership or married when they conceive using donated sperm will automatically become legal parents of the child. The biological father would not be considered a legal parent but he would be able to apply for parental responsibility.

If the female couple are not civil partners and the child is conceived through a UK licensed fertility clinic, the mothers would be able to choose whether they wish the child’s second parent to be the father or the non-birth mother. If the child is conceived outside a UK licensed fertility clinic, the biological father is likely to be viewed as the second legal parent.

A co-parenting arrangement can formalise agreement over how the child will be raised, ensuring everyone’s rights and the child’s best interests are maintained. The legalities around co-parenting arrangements can be complex and will depend on a number of factors, so it is essential to consult a solicitor to make sure you understand all the legal implications of any arrangement you are entering into.

Surrogacy

Surrogacy is where a woman carries a child for intended parents and relinquishes her parental status when the child is born. Surrogacy arrangements are legal in the UK but you cannot pay someone to act as a surrogate for you and any agreement you reach with a surrogate is not legally binding (this means that the surrogate could refuse to give up the child once it has been born).

The surrogate is always treated as the legal mother of a child at birth, and if the surrogate is married or in a civil partnership, their spouse or partner will be treated as the child’s second parent.

The surrogate will need to sign a parental order within six months of the child’s birth, transferring their parental rights to you. It is at this point that the surrogate will cease to be the child’s legal mother.

Adoption

If you adopt a child you will automatically be granted parental responsibility and the birth parents will lose their parental responsibility.

Get in touch with our LGBTQ+ family solicitors

The law relating to LGBTQ+ families is an evolving area. If you have a legal issue, it’s important you use specialist solicitors who understand the unique complexities that can arise in these situations. We offer a free 15 minute telephone conversation to discuss your situation and how we may be able to help.